Vermont Bar Journal
How Far Should Courts Go?
THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009BOOK REVIEWSHow Far Should Courts Go?Jeffrey Rosen on Democracy and CourtsReviewed by Kevin J. Doyle, Esq.The proper role of the federal courts in our democratic political system is an issue that originates with the constitutional foundations of the United States. In those critical days when the newly-independent states labored to establish a confederation that would reject the undemocratic features of the British political system, it is not surprising that some viewed with skepticism the proposal to establish a judiciary consisting of life-tenured members.(fn1) Remarkably, the terms of the philosophical debates carried on by the likes of Alexander Hamilton, John Jay, and James Madison-such as whether life tenure strikes at the very heart of the democratic enterprise or whether such a feature ensures that the adjudication of important federal disputes will not be subject to political influence-have persisted over the past two hundred years in one form or another.
It seems there are as many assessments of the federal courts today as there are political persuasions, fields of academic scholarship, and judicial philosophies. The historian is concerned with situating the Supreme Court (and the lower federal courts) as an institutional actor in the American narrative. The scholar of law and economics may critique court decisions based on how well they comport with market principles. An adherent of originalism may measure the Court's performance by how often it has recognized rights not found at common law or contemplated by the generation that ratified the Constitution or its amendments. The student of pragmatism, on the other hand, might scan the Court's record for decisions that fail to appreciate the resulting real-world implications, notwithstanding their basis in legal principle.(fn2) Others, such as Jeffrey Rosen, are concerned with the federal courts' effectiveness and legitimacy. As the title of his book suggests, Rosen examines the extent to which the courts "have tended to reflect the constitutional views of majorities" (xii). To the extent that they have not done so, in the author's view, the courts have provoked popular backlash and "undermined the very causes the judges are attempting to advance" (xii).
Rosen contends that historically the courts have been far more successful when their decisions consciously reflected the popular will. Conversely, the courts have suffered the effects of institutional illegitimacy when they have pursued results inconsistent with...