The Most Democratic Branch: How the Courts Serve America.

• Author: Devins, Neal
• Position: Book review

THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA. By Jeffrey Rosen. Oxford and New York: Oxford University Press. 2006. Pp. xi, 238. $25.

INTRODUCTION

With the 1980 election of Ronald Reagan, law professors readied themselves for the coming Armageddon. Reagan preached judicial restraint and, with it, the belief that the people and their elected representatives should make policy. The embodiment of that philosophy was Robert Bork, Reagan's choice to replace judicial moderate Lewis Powell on the Supreme Court and a man whose appearance and judicial inclinations conjured images of the devil. (1)

Legal academics cringed at Bork's claim that the founders banked a good deal upon the good sense of the people and their elected representatives. (2) The academy had banked a good deal on the good sense of courts to protect interests that the people and their elected representatives could not or would not safeguard. In Democracy and Distrust, (3) the most influential book of this period, John Hart Ely tackled the same problem that Bork addressed and came up with a very different solution. For Bork, the Warren Court perpetrated a "limited coups d'etat" by recognizing rights that are not in the Constitution. (4) For Ely, the Warren Court acted legitimately and heroically when it protected the rights of individuals systematically disadvantaged by the political process. (5)

In 1987, the legal academy carried the day; the Senate Judiciary Committee formally concluded that courts must check democratic excess and that the Constitution "is not simply a grant of rights by the majority." (6) Twenty years later, ironically, the defining works of today's law professors seek to limit the power of courts, rather than look to them for salvation. (7) Cass Sunstein has called for courts to issue "minimalist" opinions so that elected officials will play the dominant role in shaping constitutional values; (8) Mark Tushnet has argued that judicial review is counterproductive and should be taken away from the courts; (9) Larry Kramer has called for the people to exercise control over the Constitution. (10)

Jeffrey Rosen's (11) The Most Democratic Branch takes matters one step further. Rosen sees the Supreme Court's role as validating the people's constitutional preferences. For the most part, that means the Court should defer to the preferences of Congress and state lawmakers. Appearing to turn Democracy and Distrust on its head, Rosen contends that the Court should invalidate laws that do not reflect popular constitutional preferences. Rosen argues in part that courts have no power to put in place a "constitutional vision that a majority of the country rejects" and, correspondingly, that the best way to avoid "political backlashes that can thwart the effectiveness of judicial decisions is for courts to defer to Congress or the states in the face of uncertainty" (p. 14). Furthermore, claiming that judges can only maintain their "democratic legitimacy" by "deferr[ing] to the constitutional views of the country as a whole," Rosen argues that courts should only invalidate those laws that run afoul of "values that national majorities are willing to recognize as fundamental." (12) In other words, rather than feeling limited by real-world constraints, the Court should embrace those constraints. (13) That, for Rosen, is how the Supreme Court can make the Constitution more relevant and enduring.

There is great ostensible appeal to Rosen's theory. It is soothing to learn that one's limits are one's strengths. The problem, however, is that Rosen's theory is premised on two questionable propositions. First, Rosen assumes that the people have "constitutional views." Second, Rosen assumes that the Supreme Court will be slapped down for rendering decisions that do not resonate with the people and their elected representatives.

In the pages that follow, I will argue that the people are uninterested in the Constitution and the Supreme Court, leaving the Court substantial leeway to put into place its vision of the Constitution. This is not to say that the Court operates without constraint; it is to say that the risks of backlash are not nearly as significant as Rosen suggests. Correspondently, it makes no sense for the Court to sort out the Constitution's meaning by looking to the American people, who do not care about constitutional principles: while only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment, more than half can name at least two members of the Simpsons cartoon family. (14)

This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen's decision-making model. In particular, by allowing the Court to invalidate laws for a host of "antidemocratic" reasons, Rosen's matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution's meaning or otherwise constrain the Court. Finally, this Review will return to The Most Democratic Branch, considering why it is that Court decisions typically reflect majoritarian preferences. Specifically, through an abbreviated case study of the Rehnquist Court, I will argue that the Court is at once majoritarian and independent--able to do what it wants but usually not wanting to do more than is politically popular.

1. ROSEN'S MOST DEMOCRATIC BRANCH: JUDICIAL DEFERENCE WITH AN ASTERISK

   The Most Democratic Branch makes two claims about judicial power to invalidate state and federal law. (15) First, Rosen argues that Supreme Court decisions will, over time, reflect "the public's views about constitutional questions" (p. 185), and that "on the rare occasions that [the Court] has been even modestly out of line with popular majorities, it has gotten into trouble" (p. 185). For this very reason, Rosen counsels the Supreme Court not to engage in "judicial unilateralism"--striking "down federal or state laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people" (p. 8).

   Rosen's second claim concerns whether, when, and how the Court should invalidate federal or state laws. His answer is easily stated but hard to apply: Whenever the Supreme Court invalidates a law, it must promote democracy in some way. "[J]udges should identify the constitutional views of the people by using whatever combination of the usual methodologies they find most reliable and then enforce those views as consistently as possible" (p. 13). Throughout The Most Democratic Branch, Rosen fleshes out the circumstances in which the Supreme Court promotes democracy by invalidating state or federal law.

   Recognizing that lawmaker action does not always reflect the constitutional views of the American people, Rosen identifies categories of cases in which the Court can, and should, intervene (pp. 9, 59, 63, 200-01). One category concerns instances in which Congress is hampered by party polarization, seniority systems that protect antiquated views, interest group politics, the malapportionment of the Senate, logrolling, the disproportionate power of party leadership, and computer-driven redistricting. The Court can also intervene in cases, like flag burning, in which legislation is at odds with a preexisting constitutional consensus forged by the people and the elected branches (pp. 14-15, 201). Because "national majorities" had embraced a libertarian interpretation of the First Amendment, the Court could sustain its legitimacy by invalidating this politically popular measure. Matters where the Court can promote democracy through "gentle nudges" are also ripe for judicial intervention. (16) In this way, the Court can return an issue to Congress and the White House to encourage a dialogue between the branches that will yield a "democratic" resolution of the dispute. The Court encouraged such a dialogue in Ex Parte Mitsuye Endo. (17) Holding that congressional action approving curfews and evacuations for West Coast Japanese did not extend to detentions, the "Court encouraged both branches carefully to weigh the consequences of abridging liberty in the name of security...." (18)

   To understand the line separating a unilateralist decision from a democracy-enhancing exercise of judicial review, Rosen draws a contrast between Brown and Roe. With public opinion "divided" and "without fear of congressional backlash," Brown is applauded. The decision helped to "crystallize" a "constitutional consensus," especially since the Court followed the White House's "gradualist" approach of declaring segregation unconstitutional without issuing a meaningful remedy (pp. 62-63). "In the face of constitutional ambiguity," as Rosen puts it, "the Court had the political support necessary to bring the twenty-one states that still endorsed segregation into line with a growing national consensus about the unconstitutionality of American apartheid" (p. 59). Roe, on the other hand, he deems unilateralist, "impos[ing] a complicated reform not yet acceptable to a majority of the public" (p. 90). Even though opinion polls showed a narrow majority of Americans supporting the opinion, there was "no constitutional consensus in Congress or the states" that backed the Court's reasoning. Also, Roe was anything but a gentle nudge; the Court mandated immediate reform, invalidated forty-six state laws, and endorsed an expansive right that far exceeded anything that pro-choice interests could have attained through the political process. (19)

   Roe and Brown are not so easily distinguishable. Rosen claims that the Court should avoid politically costly backlashes and should only invalidate state laws when a...