Barry Friedman, Jacob D. Fuchsberg Professor of Law, joined Jan Crawford, CBS’s chief legal correspondent, and former White House speechwriter Jeff Shesol in June to discuss the Roberts Court and the concept of judicial activism at an event sponsored by NYU Law’s Brennan Center for Justice, Alliance for Justice, and the New York Lawyer Chapter of the American Constitution Society. The event, held just days before the beginning of Elena Kagan's Supreme Court confirmation hearings, was moderated by Professor Olati Johnson of Columbia Law School.

Friedman, author of The Will of the People, which argues that the Supreme Court is ultimately accountable to the popular will, said that the Roberts Court is “genius at understanding that it is ultimately accountable to public opinion, and plays public opinion exceedingly well.” The Court made a rare misreading of its constituents, he said, when many Americans, reacting negatively to its ruling in Citizens United, charged it with judicial activism. For the most part, the current Court, while “moving very far to the right very fast,” does so in “very subtle, careful ways,” doing such things, he said, as limiting who can actually get to trial and claiming not to be overruling cases when they effectively are.

Reflecting on the nomination of Kagan, Crawford said, “Some people have been disappointed that she’s not liberal enough, but…she’s very savvy...and you can see that she could be quite an effective justice on that Court in building coalitions and having some sway with some of those wavering justices, like Kennedy, the human jump ball. What’s important to keep in mind is how a new justice can change things around.”

Posted on June 29, 2010

Watch the complete recording of the event (1 hr, 13 min):