9 of 11 people found the following review helpful:
5.0 out of 5 stars
The Proper Role for the Supreme Court, June 7, 2006
This review is from: The Most Democratic Branch: How the Courts Serve America (Annenberg Foundation Trust at Sunnylands' Adolescent Mental Health Initiative) (Hardcover)
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.
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1 of 1 people found the following review helpful:
2.0 out of 5 stars
The Jurisprudence of Hindsight, February 13, 2010
What's the job of a judge? When facing a difficult legal question, how should Judges go about in solving them? This is the main question of Jurisprudence. Broadly speaking, there are two schools of answers.
One perspective holds that legal questions have answers within the legal material. Different people of this persuasion believe that the answers are located in different places - in precedent, in the original intent of the legislative, in the public understanding of the law - but they all agree that legal questions have legal answers, which can be discovered by looking at the legal sources. This is known as "Formalism". Formalists may agree that it is difficult to find the legal answers, that it takes skill and that biased judges may read the law in a "wrong" way, but ultimately, an answer exists "out there".
The alternative view is that the most difficult and interesting legal questions do not have a right or wrong answer. The legal texts do not speak clearly about them. They cannot be deduced in an algorithmic fashion from the sources. Judges rule based on their ideology, life experience, temperament, and politics. In the famous words of Justice Oliver Wendell Holmes (in
The Common Law):
"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
If one accepts that legal questions do not have a clear legal answer, that there is no obvious right and wrong, what should the role of the Judge in a democracy be? Especially in constitutional cases, where Judges can overrule the decisions of legislatures, how should the Courts act?
Here we can talk of two separate poles. Judicial Activists hold that the Courts know better than the legislature, either because Judges know better than the people what is good for them (Judges as Platonic Philosopher-Kings), or because Judges know better than the legislature what the people want. On the other extreme, advocates of Judicial restraint hold the Judges know little more than other people, and thus should overrule the legislature and the executive branches only rarely, if ever.
Most of the writings on this subject, by the likes of John Ely (
Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks)), Justice Stephen Breyer (
Active Liberty: Interpreting Our Democratic Constitution), and Justice Aharon Barak (
The Judge in a Democracy) tries to find some middle ground, to explain when Courts should intervene and when they shouldn't.
Jeffrey Rosen's book in an exception. He thinks simulatnously that Judges do know better than the legislature what the people want, and that they should refrain from overruling the legislature.
Rosen can tell us that "In our new, topsy-turvy world, it was the elected representatives who were thwarting the will of the people, which was being channeled instead by unelected judges" (p.3). This is also, presumably, why Rosen's book is titled "The Most Democratic Branch" - the Courts are better representatives of the people than their elected representatives.
But later, Rosen tells us the exact opposite: "unelected judges often have a tin ear when they try to discern or predict the constitutional views of the country...[they] sometimes mistake the views of their intellectual and social class with those of the country as a whole." (p.14).
So which is it - should Courts try to follow the people or their elected representatives? The answer is, both: "judicial decisions must be... rooted in constitutional principles rather than political expediency" (p.7). This is as an example of those irregular verbs: My decisions are rooted in principles; Yours are based upon mere political expediency. His are corrupt and self-serving.
This was all from the introduction; The rest of the book offers a long discussion of many landmark US Supreme Court decisions since the beginning of the 19th century. I am a law school graduate who finds these topics inherently fascinating, and I found the book to be heavy going. For readers who are not as enthusiastic about the Slaighterhouse cases and the Warren Court, this book may be a real bore.
The book validates the concerns raised by the introduction. It is a long discussion, in which Rosen tries to distinguish cases he likes from cases he dislikes, calling the latter "Unilateralist". To put it uncharitably, Rosen's book is a long exercise in special pleading.
Take three landmark activist cases. In "Dred Scot v. Sanford" (1857), the US Supreme Court held that Congress could not ban slavery in Federal territories, in "Brown vs. Board of Education" (1954), it ordered the desegregation of public schools, and in "Roe v. Wade" (1973) it determined that women had a constitutional right to have an abortion.
Like essentially everyone today, Rosen thinks that Dred Scot was wrongly decided, and that Brown was right. Like most conservatives and many moderate liberals, he thinks Roe was wrong. But can he find a principle to distinguish these cases?
Not easily. It is difficult to find a criteria which applies to Dred Scot and Roe, but not to Brown. Do you think the Court should be activist when supported by the President? If so, Dred Scot was right, Brown arguable, and Roe wrong. Bare majorities supported Brown and Roe, and maybe Dred Scot. Congress was highly opposed to Brown and Roe, but not to Dred Scot. The Court enforced the will of the one section of the US on another, in Dred Scot and Brown, but not Roe. Prominent politicians accused the Court of usurpation in all three cases, etc.
Rosen does say that Brown brought a local minority in line with the majority. But Segregation was legal throughout the South and several border and western states. That's a substantial minority. And in any event, we don't want the Court to willy-nilly coerce national minorities: that's why America is a federal nation. Today, same-sex marriage is legal in only a few states: should the court invalidate same sex marriage for that reason?
Rosen's pro-Restraint views force him into difficult territory when discussing several important cases from the late 19th and early 20th century. In those days, the Courts allowed several popular programs to go forward - it allowed the doctrine of "Separate but Equal" in "Plessy v. Ferguson" (1896), for example. In "Buck v Bell" (1927), arguably the worst US Supreme Court opinion of all times, it upheld a law allowing for the sterilization of the unfit. This ruling led to a 7 fold increase in the number of institutionalized persons sterilized (p. 87). Rosen's "official" stance should be in favor of both rulings, because they followed the popular will and practiced judicial restraint. Yet his views on both are ambivalent or hostile, reflecting the Liberal's unease with endorsing what we would consider today to be utterly immoral rulings.
This is the Jurisprudence of Hindsight, requiring judges to rule in a way that will be appealing decades or centuries later. That is of course not a particularly useful guide for judges. Absent a crystal ball, the most Rosen has to offer is a call for Judicial Restraint. I agree with Rosen that more judicial humility would be a good idea. But there must be exceptions to judicial restraint: The Supreme Court would be an expensive and inefficient rubber stamp.
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3 of 10 people found the following review helpful:
5.0 out of 5 stars
Advance Praise for The Most Democratic Branch, May 23, 2006
This review is from: The Most Democratic Branch: How the Courts Serve America (Annenberg Foundation Trust at Sunnylands' Adolescent Mental Health Initiative) (Hardcover)
"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
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