When I was given a copy of Jeffrey Rosen’s book, The Most Democratic Branch: How the Courts Serve America, I figured I was in for a hit piece on either the right or the left for damage done to our country through manipulation of the U.S. Supreme Court.
Instead, Rosen draws on a number of landmark cases and political history to impugn the act of judicial unilateralism. He uses the Dred Scott decision of 1856 and the Civil Rights Cases of 1883 as “cautionary tales” against judicial unilateralism, and employs many other cases to illustrate its inherent dangers.
In Dred Scott, the Supreme Court ruled under Chief Justice Roger Taney that Congress lacked the authority to prohibit slavery in federal territories. In the Civil Rights Cases, the Supreme Court held that, under the provisions of the 14th Amendment, Congress lacked constitutional authority to outlaw racial discrimination by private individuals and organizations, basically striking down the 1875 Civil Rights Act.
Throughout the book, Rosen’s arguments are based on the premise that the power of the people is superior to the will of the legislature when it stands in opposition to the Constitution. In The Federalist Papers, Alexander Hamilton says judges should be governed by that power and Rosen contends that they usually are.
He argues that judges typically do represent the constitutional view – and interests – of the people. When Brown v. Board of Education was decided in 1954, the Court not only “reflected constitutional consensus but helped one to crystallize.” Although national opinion regarding public school segregation was fairly evenly divided in 1954, Gallup Polls conducted after Brown was decided showed that over half the country favored the Court’s unanimous decision that “separate educational facilities [for black and white children] are inherently unequal.”
Making the case for judicial restraint, Rosen cites the Court’s recent decision that aliens detained at Guantanamo Bay had the right to habeas corpus. Congress basically overturned the decision. However, if the Court had acted with more restraint and held that “enemy combatants tried before military commissions could challenge the legal basis for their trials but that other detainees captured and held outside the country could not, Congress would likely not have repudiated the decision.
In The Most Democratic Branch, Rosen aruges for bipartisan judicial modesty and restraint in the spirit of Judges Frankfurter, Holmes and Leonard Hand as we approach 21st-century issues such as “genetic selection and enhancement, high-tech brain mapping that can identify criminal suspects with a propensity to violence, the demand for personalized drug and gene therapies, and efforts to patent novel forms of human life.”
Jeffrey Rosen is a Professor of Law at George Washington University and the author of The Unwanted Gaze and The Naked Crowd. He is also the Legal Affairs Editor for The New Republic, and has written for The New Yorker, New York Times Magazine and The Atlantic Monthly.
The Most Democratic Branch by Jeffrey Rosen
Oxford University Press 2006