The Most Democratic Branch: How the Courts Serve America

When I was given a copy of Jeffrey Rosen's book, The Most Democratic Branch: How the Courts Serve America, I figured I was in for a hit piece on either the right or the left for damage done to our country through manipulation of the U.S. Supreme Court. But that was not the case. Instead, Rosen draws on a number of landmark cases and political history to impugn the act of judicial unilateralism. He uses the Dred Scott decision of 1856 and the Civil Rights Cases of 1883 as "cautionary tales" against judicial unilateralism, and employs many other cases to illustrate its inherent dangers. In Dred Scott, the Supreme Court ruled under Chief Justice Roger Taney that Congress lacked the authority to prohibit slavery in federal territories. In the Civil Rights Cases, the Supreme Court held that, under the provisions of the 14th Amendment, Congress lacked constitutional authority to outlaw racial discrimination by private individuals and organizations, basically striking down the 1875 Civil Rights Act. Throughout the book, Rosen's arguments are based on the premise that the power of the people is superior to the will of the legislature when it stands in opposition to the Constitution. In The Federalist Papers, Alexander Hamilton says judges should be governed by that power and Rosen contends that they usually are. He argues that judges typically do represent the constitutional view - and interests - of the people. When Brown v. Board of Education was decided in 1954, the Court not only "reflected constitutional consensus but helped one to crystallize." Although national opinion regarding public school segregation was fairly evenly divided in 1954, Gallup Polls conducted after Brown was decided showed that over half the country favored the Court's unanimous decision that "separate educational facilities [for black and white children] are inherently unequal." Making the case for judicial restraint, Rosen cites the Court's recent decision that aliens detained at Guantanamo Bay had the right to habeas corpus. Congress basically overturned the decision. However, if the Court had acted with more restraint and held that "enemy combatants tried before military commissions could challenge the legal basis for their trials but that other detainees captured and held outside the country could not, Congress would likely not have repudiated the decision. In The Most Democratic Branch, Rosen aruges for bipartisan judicial modesty and restraint in the spirit of Judges Frankfurter, Holmes and Leonard Hand as we approach 21st-century issues such as "genetic selection and enhancement, high-tech brain mapping that can identify criminal suspects with a propensity to violence, the demand for personalized drug and gene therapies, and efforts to patent novel forms of human life."

Given all the hoopla about whether the federal courts have exceeded their proper boundaries, including recent threats by House and Senate Republicans to retaliate for the Terri Schiavo decisions, it seems an opportune time to consider what is the appropriate role for the Supreme Court in our democratic pollitical system. Jeffrey Rosen's book should contribute mightily toward that end. Rosen writes as a George Washington University law professor for the law reviews; serves as legal editor of "The New Republic"; and manages to write important articles for general publications, such as his recent article in "The Atlantic" entitled "The Day After Roe." So he is very effective at explaining legal concepts for a general audience, for whom this book is designed. Rosen's solution to the so-called "counter-majoritarian difficulty" is generally for the Court to avoid making decisions that are not supported by public consensus. This position raises a number of immediate difficulties--two name two: (1) how is the Court qualified to make such determinations?; and (2) what good is the Supreme Court if all it does is go with the majority? Rosen then spends five chapters recounting situations in which the Court did not comply with this mandate (what we used to refer to as "self-inflicted wounds"), such as Dred Scott, Roe and (of course) Bush v. Gore, where the Court paid the price for attempting to lead rather than reflect public opinion. One can, of course, think of cases where the Court did successfully lead, e.g., Miranda, but nonetheless Rosen's position here is a well-recognized one. My only complaint is that he covers so many cases under a variety of topics that I would assume the general reader might find his head spinning after ingesting this huge dose of con law. It is in the final chapter ("Constitutional Futurology, or What are the Courts Good For?") that Rosen makes his most substantial contribution. Here he neatly summarizes some of the most cogent arguments (Holmes, Hand, Frankfurter, and others) for meaningful judicial restraint. Particularly important in this regard are the benefits stemming from Bickel's concept of a constitutional dialogue between the Court and the policy-making branches, as contrasted with the adverse consequences of "judicial unilaterism." Rosen has some insightful comments on how judicial restraint should be exercised. I ended up feeling that had Rosen devoted more space to this kind of analysis, rather than running through so many con law cases, the book would have been stronger. Nonetheless, a fine introduction to this complicated issue for the general reader, who -- like the rest of us -- clearly needs to become better informed on this important topic.

"This book will be, and should be, widely read. The proper relationship of constitutional law to politics is one of the most controversial issues in American life today, and Rosen understands that relationship better than anyone. Filled with important insights--and real wisdom--The Most Democratic Branch is simply terrific. For those seeking a path out of the judicial polarization of the past decade, you need look no farther: Rosen shows the way." -- William J. Stuntz, Harvard Law School "Jeffrey Rosen defies everything you think you know about the court with a counter-intuitive argument of great power concerning both how the court has behaved in the past and how it should behave in the future. He attacks our heroic visions of the Supreme Court as a grand check against majority rule and recasts its general history as one of deference to the constitutional vision of majorities. Rosen's is a theory of adjudication for grown-ups; those at once concerned to limit judicial power and impatient with shrill doctrinal prescriptions for doing so. An important and impressive work from one of America's most insightful legal commentators." -- Benjamin Wittes, Editorial Writer, The Washington Post "Jeffrey Rosen is America's most insightful public commentator on the Supreme Court and the Constitution. Beautifully written and persuasively argued, The Most Democratic Branch makes constitutional law accessible to ordinary citizens while simultaneously challenging legal experts to rethink their views on the Court's role in American democracy." -- Michael J. Klarman, author of the Bancroft Prize-winning, From Jim Crow to Civil Rights "Jeffrey Rosen makes a powerful and accessible case for a restrained judicial role, one that will challenge liberal proponents of Warren Court activism and conservative proponents of Rehnquist Court activism. His work combines sound historical scholarship with important prescriptions for contemporary constitutional politics." -- Mark A. Graber, University of Maryland