The Most Democratic Branch: How the Courts Serve America (Annenberg Foundation Trust at Sunnylands' Adolescent Mental Health Initiative) (Hardcover)

by Jeffrey Rosen (Author) "In March 2005, for the first time in history, Congress ordered the federal courts to reexamine a case involving the right to die..." (more)
Key Phrases: Fourteenth Amendment, United States, Civil War (more...)

Editorial Reviews

From Publishers Weekly
At a time when the Supreme Court may be poised to reverse Roe v. Wade, Rosen, legal affairs editor for the New Republic and a professor of law at George Washington University, offers a thoughtful view of what has made Court pronouncements effective and how the Court can actually maintain its independence by following the mainstream of public opinion. His thesis is a model of common sense: the justices have been most effective "when they have followed a national consensus after it has crystallized, rather than trying to coax one into being ahead of schedule." In support of his argument Rosen analyzes Supreme Court precedents regarding race, privacy, politics and civil liberties. In Brown v. Board of Education, Rosen argues, while the South resisted vehemently, the majority of Americans supported desegregating the schools and the Southern backlash helped solidify that opinion. Finally, and perhaps most controversially, in an era when "constitutional politics has become a blood sport," Rosen calls for bipartisan judicial modesty and restraint. This is a well-reasoned effort that raises provocative questions about how the Supreme Court might approach looming issues such as those raised by stem cell research and privacy rights in a time of increasing technological capabilities. (June 15)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

From The Washington Post
As Chief Justice John G. Roberts Jr. wound down his first term at the helm of the Supreme Court late last month, conservatives were generally praising the court for respecting the fine old tradition of restraint -- that is, until the blockbuster June 29 decision that struck down the military tribunals President Bush established to try suspected members of al-Qaeda being detained at Guantanamo Bay. Suddenly the Roberts court looked very different to right-leaning critics of "judicial activism," who now had to distinguish between the good cases, in which the court treaded cautiously and deferred to Congress and the president, and the big bad one, in which the court supposedly refashioned American law.

In fact, judicial activism is still a promiscuously abused epithet. Far from being a case of legislating from the bench, the 5 to 3 ruling in Hamdan v. Rumsfeld, the war crimes tribunal case, returned U.S. law to some time-honored precepts: of following military law and the Geneva Conventions. And it was justices on the court's right wing who sought to remake environmental law during the term by trying to reduce federal protection for wetlands. On the bench, "activism" and "restraint" don't track with "liberal" and "conservative." In many areas of law, from presidential powers to civil rights, it's often liberals and moderates, not conservatives, who're crossing their fingers in hopes that the court will exercise restraint.

In The Most Democratic Branch, Jeffrey Rosen, a law professor at George Washington University and a New Republic writer who supported Roberts's nomination, urges restraint on the court as a whole. Like his fellow moderate Cass R. Sunstein of the University of Chicago, Rosen argues that our democracy works best when the justices let the elected branches of government take the lead. Rather than interpreting the Constitution on its own, Rosen writes, the court should defer "to the constitutional views of the country."

So how should justices divine the nation's "constitutional views"? One answer is that courts should be reluctant to override the will of legislatures by striking down statutes. But what about cases in which the court is giving expression to the words of the Constitution in a context that doesn't involve making an up-or-down call on a law passed by Congress? "Judges are not supposed to be so crude as to simply follow the polls; that would make them politicians," Rosen notes. But throughout The Most Democratic Branch, he cites polls as evidence for the wisdom, or lack thereof, of particular rulings. He would prefer to rely on Congress as a barometer of the national "constitutional views" he wants the court to reflect. But as he quickly points out -- and as the book's title suggests -- on the most contested issues of the day, the Supreme Court has often proved more faithful to the views of the national majority than Congress has. By intervening in the Terri Schiavo case, for example, Congress trampled public opinion, while the courts, by leaving undisturbed the ruling of the trial judge who knew the case best, put into practice the majority's view.

Whatever its underpinnings, Rosen's view that the bench should without fail reflect the will of the majority diverges from the usual notion that courts are a counter-majoritarian force. If you think of the courts as the branch of government that should stand up for the rights of embattled minorities -- disenfranchised felons, fringe sects -- then this strict sort of judicial restraint isn't for you; you want a judiciary that sometimes slugs away for the little guy. But that's not Rosen's model. He thinks that sweeping interpretations of the rights enumerated in the Constitution are great -- if you can get them from Congress. But if you have to rely on the courts to get them, you're likely to provoke a backlash from the majority that disagrees with the court's direction and refuses to let lie a decision it doesn't like, thus undermining "the very causes the judges are attempting to advance."

Does Rosen's evidence support his thesis? Yes and no. The blockbusters of 20th-century judicial activism are Roe v. Wade, which created a national right to abortion in 1973, and Brown v. Board of Education, which called for national desegregation in 1954. Rosen is not a fan of Roe, and his backlash argument is on solid ground here. "Even today, Roe continues to distort and inflame our judicial confirmation process," he writes. Feminists may be forgiven for feeling that Rosen is too quick to throw over one of their most important victories. But as Rosen and others have argued, the day Roe is overturned may be a good day for Democrats, politically speaking, because it is likely to galvanize pro-choice voters.

But Brown is a much harder case for Rosen -- because of the transcendent moral authority of its opposition to bigotry and its eventual acceptance by the country. No one runs for election on a "Reverse Brown" platform. Rosen acknowledges the case's role in educating Congress and the White House about the ills of segregation, but for the most part he downplays its boldness. Looking past the rage of the South, Rosen emphasizes that Harry S. Truman and Dwight D. Eisenhower "nominally supported" desegregation and that Congress didn't explicitly reject Brown. The ruling's gradualist approach to change, Rosen argues, also shows that, despite the howls of some on the right, it isn't really a case of judicial activism after all.

Then there are some other liberal activist decisions that Rosen decries: the Supreme Court's rejection of state laws banning sodomy and permitting juvenile execution, or the Massachusetts Supreme Court's 2003 decision recognizing gay marriage. These decisions may contain some overly grandiose rhetoric, but how widespread a backlash have they really sparked? No one has been marching to arrest gays for sex acts or to put teenagers to death. And though the Massachusetts decision helped launch a wave of anti-gay-marriage state referenda, on its home turf -- the only place where the ruling is law -- the controversy has petered out and turned into acceptance. Is a state court to blame for the reaction if people in other states don't like its rulings?

To make his case for judicial restraint, Rosen also feels bound to defend Korematsu v. United States, the notorious 1944 decision upholding Franklin D. Roosevelt's decision to intern Japanese Americans during World War II. This does not give cheer. That decision -- unlike this term's decision striking down the Guantanamo tribunals -- exemplifies the problem with treating restraint not as a starting point but as a philosophy worthy of absolute fealty: Courts might be less scary, but they would also do less justice. It's probably a good thing that few judges are as purist as Rosen would have them be.

Reviewed by Emily Bazelon
Copyright 2006, The Washington Post. All Rights Reserved.

See all Editorial Reviews

Product Details

• Hardcover: 256 pages
• Publisher: Oxford University Press, USA (June 19, 2006)
• Language: English
• ISBN-10: 0195174437
• ISBN-13: 978-0195174434
• Product Dimensions: 8.3 x 5.6 x 0.9 inches
• Shipping Weight: 12.6 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars See all reviews (3 customer reviews)
• Amazon.com Sales Rank: #676,996 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

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

By	Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

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.

0 of 1 people found the following review helpful:

5.0 out of 5 stars Making the Case Against Judicial Unilateralism , November 1, 2007

By	Diana Raabe (Minneapolis, MN) - See all my reviews

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."

4 of 11 people found the following review helpful:

5.0 out of 5 stars Advance Praise for The Most Democratic Branch, May 23, 2006

By	Publisher (New York, NY) - See all my reviews

"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