Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people.

In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he

argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster.

To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history--cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows

that the most notorious constitutional decisions in American history--the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade--have gone against mainstream opinion. By contrast, the most successful decisions--from Marbury v. Madison to Brown v. Board of Education--have

avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law.

Jeffrey Rosen is one of the most respected legal experts writing today, a regular contributor to The New York Times Magazine and the Legal Affairs Editor of The New Republic. The provocative arguments that he puts forth here are bound to fuel heated debate at a time when the federal judiciary

is already the focus of fierce criticism.

"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.... Washington Post Book Review (read the entire Washington Post review) 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' 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 teen-agers 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.

Emily Bazelon is a senior editor at Slate." Reviewed by Emily Bazelon, Washington Post Book World (Copyright 2006 Washington Post Book World Service/Washington Post Writers Group)
(hide most of this review)

"A significant polemic from an important writer.... Rosen has emerged as the nation's most widely read and influential legal commentator."--Los Angeles Times

"A well-reasoned effort that raises provocative questions about how the Supreme Court might approach looming issues.... Rosen 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."--Publishers Weekly

"A compact, elegantly argued, and highly readable survey of American constitutional history."--Commonweal

"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

"There is no sharper critic of the Supreme Court than the New Republic's Jeffrey Rosen, and there is no finer ambassador between the planet of legal academia and that of the popular media.... Rosen's book is, like everything he writes, terrifically smart and useful and thought-provoking."--Slate

"Articulate and thoughtful."--The American Prospect

"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

"A well-written book that even most undergraduate students should be able to understand. The pace is swift enough that students should not lose interest.... The book should effectively stimulate discussions about the proper role of the courts."--Law and Politics Book Review

"A significant polemic from an important writer.... Rosen has emerged as the nation's most widely read and influential legal commentator."--Los Angeles Times

"A well-reasoned effort that raises provocative questions about how the Supreme Court might approach looming issues.... Rosen 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."--Publishers Weekly

"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

"There is no sharper critic of the Supreme Court than the New Republic's Jeffrey Rosen, and there is no finer ambassador between the planet of legal academia and that of the popular media.... Rosen's book is, like everything he writes, terrifically smart and useful and thought-provoking."--Slate

"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

Contrary to what interest groups may claim, the author contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream.

Acknowledgments

Preface

Introduction: The Most Democratic Branch

Chapter 1. Cautionary Tales

Chapter 2. Race

Chapter 3. Love and Death

Chapter 4. Politics

Chapter 5. Civil Liberties

Epilogue: Constitutional Futurology, or What are Courts Good For?

Notes

Index