Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  38 school prayer 142 and criminal bans on flag burning, 143 as well as sa- feguarding the rights of criminal defendants, such as Miranda v. Ari- zona. 144 Even on these exceptional occasions, though, it would be mistaken to suppose that overwhelming popular majorities oppose the Court. The Justices invalidated school prayer and Bible reading only after the relative demise of the nation’s unofficial Protestant establish- ment. 145 Likewise, the Warren Court’s criminal procedure revolution was rendered possible only by shifting public attitudes toward race, poverty, and totalitarian law enforcement practices. 146 Thus, while national majorities have opposed the Court decisions in this category, a solid thirty-to-forty percent of the American public has sided with the Justices. 147 The number of times that an overwhelming majority of Ameri- cans has opposed the Court’s constitutional interpretations probably can be counted on one hand. Chisholm v. Georgia , 148 ruling noncon- senting states suable in federal court under Article III, clearly is such an instance. Morehead v. New York ex rel. Tipaldo , 149 invalidating New York’s minimum wage law in the midst of the Great Depression, may well be another. Significantly, both of these decisions did harm the Court’s standing. Chisholm was the Supreme Court’s first significant constitutional decision, and the Justices got it so wrong (in the sen- se of contravening public opinion) that Congress immediately sla- pped them down, passing the Eleventh Amendment by majorities of nine-to-one in the House and eleven-to-one in the Senate. 150 Chief Justice Jay concluded, as a result of this episode, that the Supreme Court never would achieve equal standing with the other branches of the national government; he resigned soon afterwards to become governor of New York. Similarly, Tipaldo was the straw that broke 142 See, e.g., Engel v. Vitale, 370 U.S. 421 (1962). 143 See, e.g., Texas v. Johnson, 491 U.S. 397 (1989). 144 384 U.S. 436 (1966). 145 See Klarman, Civil Rights , at 46-62. 146 See id . at 62-66. 147 For the polls on flag burning and school prayer, see Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. rev. 577, 606 & n.142, 607 & n.148 (1993). 148 2 U.S. (2 Dall.) 419 (1793). 149 298 U.S. 587 (1936). 150 See William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ells- worth 200 (1995); 1 Charles Warren, The Supreme Court in United States History 101 (1926). On hostile public reaction to Chisholm , see id. at 96-101.