Judicial activism is a political lightning rod. It has been a campaign issue in the last few national elections and is the rallying cry for those who seek term limits for judges. To what extent have our courts historically been out of step with public opinion – fixated on protecting the rights of minorities against the tyranny of the majority and thwarting the will of the people? Law professor Jeffrey Rosen comes to grips splendidly with this issue in “The Most Democratic Branch.”
“Judicial activism” doesn’t happen often, and when it does, it usually fails. For most of American history, courts have tended to reflect the constitutional views of majorities. On the relatively few occasions when they imposed values that did not enjoy a broad social consensus, backlashes arose that disparaged the very causes sought to be advanced.
“The Most Democratic Branch” examines Supreme Court cases involving judicial power, race, affirmative action, abortion, gay rights and marriage, the right to die, electoral disputes and civil liberties in times of war. From Marbury vs. Madison in 1803 to the Terri Schiavo case, Rosen demonstrates that the constitutional views of the president, Congress and the people have not threatened judicial independence, but to the contrary have strengthened and preserved it. By contrast, the least effective decisions – those most likely to be attacked and resisted – have been ones in which the courts unilaterally imposed principles that were actively and intensely contested in the precincts of American values and thought.
Decisions based on sound constitutional principles, as opposed to transient social, political and economic trends, almost always reflect the view of national majorities. When Chief Justice John Marshall wrote the landmark decision of Marbury vs. Madison recognizing the authority of courts to strike down laws inconsistent with the Constitution, this power of judicial review was already accepted and relatively uncontroversial. In 1857, however, when his successor, Chief Justice Roger B. Taney, issued the Dred Scott decision upholding slavery, the majority of Americans believed that either Congress or the territorial legislatures had the power to ban slavery if they wished. Such “unilateralist” decisions, lacking support of the majority of Congress and the public at large, Rosen argues, squander the legitimacy of the courts.
Rosen presents cases in historical context and explains each controversy in the clearest terms relating to contemporary public opinion. When the Supreme Court unanimously decided to end segregation in public schools in 1954 in Brown vs. Board of Education, a Gallup poll following the decision found that more than half the country approved. Congress had been unable to reflect national opinion about segregation because the seniority system gave disproportionate power to entrenched white Southerners. As Justice Robert Jackson observed during the oral argument, “realistically, the reason this case is here is that action couldn’t be obtained from Congress.”
In addition to Rosen’s acclaim as a legal scholar, he has been described as one of the best magazine journalists in the country. “The Most Democratic Branch” delivers sound scholarship in a refreshingly readable style. Despite the hot-button nature of the “judicial activism” charge, the author has no ax to grind. It is his particular genius to describe harmony and dissonance in the judicial process without bias or prejudice.
In his final chapter, Rosen explores the kinds of disputes the Supreme Court will confront during the next few decades. He expresses a strong preference for judicial restraint and deference to democratic values. Every judge knows that to be respected and followed, a decision must be well-reasoned and persuasive. It must be, in effect, a compelling brief to the public. There are times, rare in occurrence, when judges are compelled to write opinions they know will be unpopular. In those circumstances they are obligated to write with even greater precision and humility, because if they are not persuasive, the law itself loses respect.
John L. Kane is senior U.S. district judge in Denver.
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The Most Democratic Branch
How The Courts Serve America
By Jeffrey Rosen
Oxford UniversityPress, 210 Pages, $26
