Lawrence Friedman

Lawrence M. Friedman, professor of law at Stanford Law School, is the author of A History of American Law (Simon and Schuster).

Recent Articles

Our Common-Law Constitution

People approve of an evolving Constitution mainly when it evolves in the direction they want it to go.

Supreme Court nominee Elena Kagan, Wednesday, June 30, 2010. (AP Photo/Susan Walsh)
The Living Constitution , by David A. Strauss, Oxford University Press, 150 pages, $21.95 The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution , by Barry Friedman, Farrar, Straus and Giroux, 614 pages, $35.00 Everybody knows the Supreme Court is powerful and important, but why should it be? The nine justices on the Court are not elected to their positions, are not accountable to the public, and can keep on serving and making decisions long after the president who appointed them has retired. What explains the role of the Court in our society, and what justifies its power? Two new books address these questions, but in different ways. The first, David Strauss' The Living Constitution , is a succinct attack on "originalism." This is the idea (or ideology) that the duty of judges, in a constitutional case, is to try to ferret out what the Constitution meant to the people who drafted it, at the time that they drafted it, and...

How Supreme a Court?

The highest court follows the political trends rather than defying them. Not that there's anything wrong with that.

The Supreme Court and the American Elite, 1789-2008 by Lucas A. Powe Jr., Harvard University Press, 421 pages, $29.95 For both liberals and conservatives, whether or not Barack Obama can reshape the federal courts looms as one of the great uncertainties about his presidency. Although no one knows how many or which Supreme Court justices he may have a chance to replace, he will certainly have dozens of vacancies to fill in the lower federal courts. George W. Bush stuffed these courts with reactionaries, and Obama can surely make a difference by nominating more liberal judges. Still, the Supreme Court has the last say in the federal system, and at times in our history it has spoken with a very loud voice. If Obama initiates an era of Democratic political dominance, Lucas Powe Jr.'s new book suggests what accent that voice will have. By combining two narratives usually kept separate, Powe claims to have written a new and different history of the Supreme Court. In histories of American...