The Most Democratic Branch: How the Courts Serve America (Institutions of American Democracy) 1st Edition

Has there ever been a more divisive Supreme Court decision than Roe v. Wade? Brown v. Board of Education was controversial in its day, but did not divide the country in any meaningful or lasting way. More recently, Obergefell v. Hodges, which legalized same-sex marriage, while controversial, has stirred up none of the dissension of Roe v. Wade. Roe v. Wade has divided the nation unlike any Supreme Court decision since Dred Scott v. Sanford (1857). Roe v. Wade has pushed the extreme elements in both political parties to the point where compromise decisions have become increasingly harder to come by in Congress.

Roe v. Wade is among the many Court decisions discussed in “The Most Democratic Branch: How the Courts Serve America,” by Jeffrey Rosen, a professor of law at The George Washington University Law School. In some ways, it’s the only case, as the author cites Roe v. Wade again and again as among the worst examples of judicial unilateralism, in which the court acted out of step with the executive and legislative branches of government and the American people. Many court watchers and legal analysts, including liberal Supreme Court Justice Ruth Bader Ginsberg, would agree. Justice Ginsberg has repeatedly spoken out about the need to find a balance between advancing constitutional values and respecting the democratic process, and having criticized Roe v. Wade for moving too far too fast. If that’s true, who should make the call on the abortion issue? According to the author, the decision should be made by the legislature. More about that in a moment.

First, are the courts the most democratic branch of government as the title suggests? For the most part they are, says Rosen, when they reflect and enforce the constitutional views of the American people. “Paradoxically, the courts, often derided as the least democratic branch of government, have maintained their legitimacy over time when they have been more rather than less democratic in their constitutional views.” They get into trouble when they unilaterally try to strike down laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people, says the author. Roe v. Wade and Bush v. Gore are two striking examples. Rosen’s book is a cautionary tale about the chaos that may result if judges forget they are as accountable to the American people, as much as the executive and legislative branches of government. Rosen recommends judicial restraint (as opposed to judicial activism) as the solution. It’s a time-honored approach that has enjoyed widespread support among liberals and conservatives but is increasingly out a fashion, he says. “This tradition, famously associated with judges like Oliver Wendell Holmes, Felix Frankfurter, and Learned Hand, holds that courts should play an extremely modest role in American democracy.” Put another way, judges should confine themselves to gentle nudges rather dramatic shoves.

Rosen argues that Roe v. Wade is a case where the Court should have nudged gently when they shoved dramatically. “(Roe v. Wade) represents one of the few times in the Court’s history that it has unilaterally leaped ahead of a national consensus about liberty and equality to impose a complicated reform not yet accepted by a majority of the public.” At the time of the decision, nearly a third of the states had liberalized their abortion laws, but thirty states still had laws on their books forbidding abortion except to save the life of the mother. And nationwide public opinion when Roe was decided appeared to support reform but not complete repeal of abortion restrictions. At the time, the efforts of reformers were focused on state legislatures, which the Roe decision put a stop to.

Although no one can be sure how quickly abortion laws would have been liberalized across the country, the fact that more than half the country since 1973 has consistently opposed restrictions on abortion during the first three months of pregnancy suggests that the reform movement could not have stalled for long without provoking a national reaction, says Rosen. Moreover, this national majority in favor of the right to choose abortion during the first trimester remained largely unchanged for nearly two decades after Roe.

The response to Roe created a series of conservative interest groups who sought the appointment of Supreme Court justices who would reverse Roe. Yet, public opinion has not changed in the interim. The national majority still remains in favor of the right to choose during the first trimester. Which brings us back to where the issue should have been addressed in the first place—the legislature.

Most Americans are moderates and tend to be more liberal than the pro-life base, says Rosen. Should Roe v. Wade be overturned, which is not out of the question, it’s likely moderation would return to American politics. The abortion question would then be a decision for state legislatures and ultimately for Congress to make, and would reflect the political makeup of all the people, rather than the extreme elements of either political party. Being pro-life or pro-choice would not carry as much weight. Under such a scenario, “judicial nominations could go back to normal at last,” says Rosen. It’s refreshing to think so.

Read Rosen’s book. He makes a strong case for judicial restraint that challenges proponents of both liberal and conservative judicial activism. As one critic put it: "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." Amen.

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.

Good read.