Jeffry Rosen: The Most Democratic Branch

I have just finished reading Jeffrey Rosen's "The Most Democratic Branch: How the Courts Serve America", Oxford University Press, 2006. I found it most interesting, although perhaps stretching his thesis a bit too much in some places. Worth reading, even if you end up not agreeing with the author.

Here is the book description as listed in Amazon:

"At a time when the Supreme Court may be poised to reverse Roe v. Wade, Rosen, legal affairs editor for the New Republic and a professor of law at George Washington University, offers a thoughtful view of what has made Court pronouncements effective and how the Court can actually maintain its independence by following the mainstream of public opinion. His thesis is a model of common sense: the justices have been most effective "when they have followed a national consensus after it has crystallized, rather than trying to coax one into being ahead of schedule." In support of his argument Rosen analyzes Supreme Court precedents regarding race, privacy, politics and civil liberties. In Brown v. Board of Education, Rosen argues, while the South resisted vehemently, the majority of Americans supported desegregating the schools and the Southern backlash helped solidify that opinion. Finally, and perhaps most controversially, in an era when "constitutional politics has become a blood sport," Rosen calls for bipartisan judicial modesty and restraint. This is a well-reasoned effort that raises provocative questions about how the Supreme Court might approach looming issues such as those raised by stem cell research and privacy rights in a time of increasing technological capabilities. (June 15) "

Read the following reviews for more (critical) thoughts:

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/06/AR2006070600995.html

http://writ.news.findlaw.com/books/reviews/20060804_healy.html

http://www.slate.com/id/2146226/


From the last cited review here is a particularly interesting passage:

"Rosen's book is, like everything he writes, terrifically smart and useful and thought-provoking. But the strain of hopelessness braided throughout seems to reflect a larger liberal despair that there really is no viable role for the Supreme Court to play in the political life of this country. Forced to choose between toothless justices and unconstrained ones, Rosen opts for the toothless ones. And he leaves us with the vision of a court that trudges dutifully, almost pointlessly, behind the nation and the other political branches.

"If the Constitution itself is so mutable, if even the most brilliant Supreme Court justices are expected to devote themselves to smoking out "the constitutional views of the country as a whole," we hardly need a Constitution. If the court must meekly approve any act taken by the executive branch or Congress, so long as it's supported in the polls—performing at most an "educative" function—we hardly need nine justices. And if the court is really to become the national prom queen or House of Windsor—more interested in appearing legitimate than in doing anything—we can probably phase it right out.

"Rosen's starting points are descriptively accurate: The court cannot enforce its rulings and "in the long run, majorities in America will always have their way." In the face of all that, maybe the smartest justices really should just roll over. I, for one, am inclined to hope that at least a few choose to stick around and fight."