We think of the Supreme Court’s constitutional decisions as lofty, lonely, unchallengeable. But in truth they are part of a dialogue with public opinion and political leadership—and in the long run the Court does not stray far from the public. That is the convincing conclusion of Barry Friedman’s stunning, fascinating history.Here's a review of Friedman's book in The New Republic:
In Friedman’s assessment, no journalist was more closely attuned to the sentiments of ordinary Americans in the latter half of the twentieth century than Anthony Lewis of The New York Times. “In a probing 1962 feature story,” Friedman writes, “Lewis explained that the Supreme Court’s rapid development of the law in the areas of race relations, legislative apportionment, and the rights of criminal suspects reflected ‘a demand of the national conscience.’” Unburdened by data, Lewis unabashedly identified national trends that just happened to coincide perfectly with the Warren Court’s jurisprudence. Lewis explained the Court’s decision in Brown as follows: “Once again no complicated motive need be sought. The Supreme Court was reflecting a national moral consensus on segregation--perhaps anticipating a feeling that had not yet fully taken shape.”
This assertion is historically inaccurate. A great deal more opposition and ambivalence greeted Brown than is revealed by such a tale of moral triumph. But Friedman’s admiration for Lewis knows no bounds. “Though critics complained constantly that the Warren Court was running ahead of the crowd,” he remarks, “at least one perceptive observer understood that the Court did what it did because the public supported these outcomes and no other organ of government would provide them. That was Anthony Lewis.” In extolling Lewis’s coverage of Bickel’s Oliver Wendell Holmes Lectures at Harvard Law School, Friedman gushes: “Ultimately, it was Anthony Lewis who proved the Court’s most perceptive spectator.”
Whatever Anthony Lewis’s other journalistic strengths, having his finger on the pulse of the common man is not among them. Lewis was born in New York City and attended an elite private high school followed by Harvard College. His first job took him to the Times. When Justice Frankfurter suggested to James Reston that the Gray Lady needed a Supreme Court correspondent, Reston personally tapped Lewis for the assignment and returned him to Cambridge, where he studied at Harvard Law School as a Nieman Fellow. Lucas A. Powe Jr. has accurately characterized Lewis’s assessments of the Court as “both first drafts of history and explanations by one part of the Establishment of another part of the Establishment to other parts of the Establishment.” Friedman promises Joe Sixpack, but he delivers Tony Martini.
The book’s endorsement of Lewis’s many national-consensus pronouncements is most egregious in the instance of the Warren Court’s 1961 decision in Mapp v. Ohio, which required state courts to exclude evidence obtained in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. “Although police complained [about Mapp],” Friedman writes, “the decision appears to have been in line with popular opinion, at least to the extent the public was paying attention. As Anthony Lewis wrote in The New York Times, the Court’s decision reflected ‘a national moral sentiment’ that refused ‘to tolerate police misbehavior in any state.’” It is worth observing that three justices dissented in Mapp, thereby rendering it difficult to believe that broad agreement existed in the entire nation when it did not even exist at the justices’ conference table. In 1961, moreover, half of the states permitted what Mapp forbade, including such notorious backwaters as New York. Abe Fortas, a Washington lawyer who would soon be elevated to the Court by his old friend Lyndon Johnson, called Mapp “the most radical decision in recent times.”