THE MOST DEMOCRATIC BRANCH
How the Courts Serve America
By Jeffrey Rosen
Oxford Univ. 238 pp. $25
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. ?
Emily Bazelon is a senior editor at Slate.