by Jeffrey Rosen. Oxford: Oxford University Press, 2006. 256pp. Hardback. £14.99/$25.00. ISBN: 9780195174434.
Reviewed by Jack E. Call, Professor of Criminal Justice, Radford University. Email: jcall [at] RADFORD.EDU.
Public opinion polls suggest that three commonly held views of the courts are that they 1) exist to protect ordinary people from the tyranny of the majority (or perhaps the elite); 2) they are out of tune with what the majority of Americans desire; or 3) they are rather closely in touch with and follow public opinion. In THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA, Jeffrey Rosen argues not only that the courts (by which he usually means the Supreme Court) have generally followed public opinion but that they should follow it. When they do not, they engage in judicial unilateralism, defined as “a court’s decision to strike 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 argues that when the Court engages in judicial unilateralism, its decision usually results in undesirable consequences.
Consequently, Rosen suggests that the Court acts most judiciously when it practices bipartisan, judicial restraint. It does this by upholding a “challenged federal or state law unless [it] is confident that the constitutional arguments for striking the law down are not being actively contested by a majority of the American people. Judges should be free to strike down laws if they believe, in good conscience, that the Constitution requires it, but they should be wary about rejecting the competing constitutional views of Congress, the presidents, or a majority of the states unless the case for invalidation is very strong” (p.13).
After laying out his thesis clearly in the Introduction, Rosen surveys some historically significant Supreme Court decisions and analyzes whether they are unilateralist or non-unilateralist in a chapter called “Cautionary Tales.” Not surprisingly, he begins with MARBURY v. MADISON and argues persuasively that the Court under John Marshall’s leadership was not prone to engage in judicial unilateralism. Marshall was careful to “defer to Congress on questions that the nation cared intensely about, and confin[ed] his invalidation of laws to cases affecting basic principles . . . . that the nation as a whole was willing to support” (p.20). MARBURY was not an instance of judicial unilateralism. By the time that case was decided, the political system had accepted the idea that the courts possessed the power of judicial review. Thus, asserting that power was not highly controversial.
More controversial would have been a decision to overturn the Repeal Act, a law passed in 1802 by the Jefferson-controlled Congress to eliminate the federal circuit courts created by the [*676] Federalists in the Adams Administration. While the Repeal Act was not universally supported, it enjoyed strong support. A decision by a Federalist-dominated Supreme Court to overturn a congressional act engineered by the new Jefferson Administration would have been an act of judicial unilateralism. In STUART v. LAIRD, decided a week after MARBURY, the Marshall Court upheld the constitutionality of the Repeal Act and avoided the potential public outcry (and possible weakening of the Court’s status) that may well have occurred if the Court had declared the Act unconstitutional.
In MCCULLOCH v. MARYLAND, the Marshall Court upheld congressional authority to establish a National Bank under the Necessary and Proper Clause of the Constitution. While MCCULLOCH is often viewed as a case in which John Marshall put the power of the Court at some risk in order to uphold his views in favor of a strong national government, Rosen sees the decision as one deferential to congressional authority exercised to charter a bank that “had been consistently endorsed by the Congress and the president” (p.28).
On the other hand, Rosen sees THE DRED SCOTT CASE as a classic case of judicial unilateralism. The Court tried to save the country from the turmoil created by the national controversy over slavery by ruling that Congress could not ban slavery in federal territories. In doing so, the Court acted against the belief of a majority of Americans that “either Congress or the sovereign people, represented by territorial legislatures, had the power to ban slavery if they wanted to” (p.31). In so ruling, the Court made civil war more likely.
The next four chapters deal with specific subject areas – race, love and death, politics, and civil liberties in wartime.
Race. The post-Civil War SLAUGHTERHOUSE CASES and CIVIL RIGHTS CASES are cited as examples of judicial unilateralism. In both sets of cases, the Court took a very narrow view of The Privileges and Immunities Clause of the Fourteenth Amendment, by ruling that the privileges protected by the clause referred only to a very narrow set of rights associated with federal citizenship (as opposed to state citizenship). In so doing, the Court took a position that was contrary to the intention of the principal drafter of the Fourteenth Amendment (John Bingham) and the common understanding of the clause at the time. The result was to virtually eliminate the ability of the post-war Republican-dominated Congress to pass legislation that could effectively protect the civil rights of the newly freed slaves.
Somewhat surprisingly perhaps, Rosen does not view BROWN v. BOARD OF EDUCATION as an instance of judicial unilateralism. While the decision was obviously extremely unpopular in the South, national opinion about segregated schools was fairly evenly divided, and a Gallup poll taken in the summer of 1954 suggested that a majority of Americans agreed with the decision in BROWN.
The school busing decisions that followed in the early 1970s were another [*677] matter, however. They were instances of “the most aggressive” judicial unilateralism and failed because they were intensely unpopular and never enjoyed the support of Congress or the President. Rosen concludes that the progress made in the late twentieth century in reducing racial discrimination came not from the Court but from Congress and the President.
Love and Death (the right to privacy – abortion, sodomy laws, and gay marriage). In this chapter, Rosen discusses the Court’s treatment of sterilization laws, laws prohibiting the use of contraceptives, and laws dealing with the right of individuals to stop treatment or to die in a manner of their choosing. However, the most interesting discussion concerns the Court’s abortion and sodomy cases.
Although Rosen professes to be pro-choice, he has little good to say about ROE v. WADE. He views the decision as a significant act of judicial unilateralism. While public opinion polls shortly after ROE suggested that a bare majority (52%) of Americans supported the Court’s prohibition of state restrictions on abortions during the first three months of pregnancy, Rosen sees this public support for ROE as “only skin deep” (p.90). Substantial majorities of Americans also indicated that they favored many of the restrictions on abortions that the Court later upheld, such as spousal notification laws, parental notification laws, and requirements for informed consent.
Rosen argues that the controversy stirred up by the Court in ROE has had undesirable consequences. It “continues to distort and inflame our judicial confirmation process, giving social conservatives and liberal extremists an exaggerated sense of their own political power and sense of victimization in a debate where they have lost the hearts and minds of a majority of the country” (p.91). Although Rosen concedes that it is impossible to predict what changes in abortion laws would have occurred in the absence of ROE, he discusses a number of liberalizations of abortion laws that occurred in the years prior to that decision. He points to the consistent majority support in public opinion polls for the mother’s right to choose during the first three months of pregnancy as evidence that “the reform movement [that preceded ROE] could not have stalled for long without provoking a national reaction” (p.95). Instead, he suggests that ROE had the opposite effect, triggering a conservative backlash that resulted in a string of limitations on abortions after the first three months of pregnancy.
Rosen goes so far as to conclude that “the best political gift that the Court could give to the pro-choice majority in the nation might be to overturn ROE. If ROE were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves” (p.102).
With regard to laws regulating homosexual conduct, Rosen believes the Court was wise not to find a constitutional prohibition on sodomy [*678] laws when it first considered the issue in BOWERS v. HARDWICK (1986). This gave public opinion in favor of relaxing government restrictions on homosexual conduct time to change in a liberal direction. By the time the Court reconsidered the issue in 2003, twelve state sodomy laws had been repealed or invalidated in the courts since the BOWERS decision. This gave the Court a more legitimate basis for its ruling that the Constitution prohibits sodomy laws (LAWRENCE v. TEXAS).
However, Rosen believes that the Court’s latter decision, while not highly controversial, would have been less controversial if it had been grounded on the equality approach espoused by Justice O’Connor in her concurring opinion (sodomy laws violate equal protection of the law when applied only to homosexuals and not to heterosexuals). The privacy language used in Justice Kennedy’s majority opinion resulted, in Rosen’s view, in public concern that the Court will also strike down bans on gay marriages. Rosen concludes that if the Court does indeed issue such a ruling in the near future, “[e]verything we know about the wages of judicial unilateralism suggests that the national backlash would set back the cause of gay and lesbian equality rather than advancing it” (p.112).
Politics. This chapter deals with electoral litigation. Rosen identifies three phases of electoral litigation in Supreme Court cases: 1) the creation of a right to an equally weighted vote (“one man, one vote”); 2) the right to an equally effective vote (a vote that gives minority groups an equal chance to influence elections); and 3) creation of “an entitlement to electoral arrangements that gave the appearance of political fairness.” The first phase was generally successful, in Rosen’s view, because public opinion had begun to support the notion of one man, one vote, and the normal political processes could not be expected to make the changes needed to bring about this result.
Rosen sees the second phase as another example of judicial unilateralism (although not the most egregious kind) because it discouraged Congress from addressing the difficult issue of giving true political voice to minorities. Instead, Congress “found it politically convenient merely to endorse or reject the Court’s conclusions” (p.132).
However, it was the third phase that was the most unilateralist and unsuccessful. Most of the cases during this phase struck down bizarrely drawn districts (the products of political gerrymandering) without articulating either a clear basis for its conclusions or a rule that could be easily applied by the lower courts in future cases. The low point in this phase was the Court’s ill-advised decision in BUSH v. GORE. Rosen believes that the Court needlessly jumped into a dispute that most Americans did not want the Court to resolve. The result will be a “litigation mess that will now hang over all of our elections for the foreseeable future” (p.146).
Civil Liberties in Wartime. In this chapter, Rosen examines the [*679] Court’s treatment of civil liberties in times of war or great national crisis. He analyses the Court’s handling of the Alien and Sedition Acts (1798), free speech issues during the Civil War, the Espionage Act (1917), anti-Communist legislation, Lincoln’s suspension of habeas corpus, the Japanese internment cases from World War II, and the recent HAMDI and PADILLA cases (dealing with the attempts of the Bush Administration to deny normal judicial process to persons characterized by the Administration as enemy combatants). Rosen concludes that “[t]he Court’s interventions during the Civil War and World War II show that judges are better at forcing the president and Congress to act bilaterally in wartime than they are attempting to protect liberty unilaterally” (p.177).
Rosen criticizes the Court’s handling of the enemy combatant cases as examples of judicial unilateralism. His criticism stems largely from the HAMDI decision, where the Court concluded that Congress had given the President authority to detain enemy combatants found in the battlefield. However, the failure of Congress or the President to specify a judicial procedure whereby the executive decision to detain a combatant could be reviewed meant that the Court had to impose such a procedure. The Court’s finding of congressional authorization to seize enemy combatants is questionable at best and is, in any event, undesirable. Rosen contends that by coming to this conclusion the Court removed any incentive for Congress to take action to specify the procedures that the President should take (as well as any actions he could not take) in dealing with enemy combatants in the war on terror.
Epilogue, “Constitutional Futurology, or What Are Courts Good For?” Rosen speculates about the prospects for and the consequences of unilateralist decisions by the Court on several potential issues that are likely to be highly charged. Those potential issues include reproductive cloning, the use of high tech scanning to search people or to predict the likelihood that they will engage in violent behavior in the future; laws banning sex selection; the use of gene therapies to cure disease or to enhance one’s physical or cognitive capabilities; and the use of copyrights and patents to protect digital creations or genetically modified organisms. Given the lessons described in the book that Rosen has drawn from the Supreme Court’s history, he advises the Court to stay out of these issues until the legislative branches and executive agencies have had time to ponder and debate them and develop laws and regulations dealing with them.
This is a good book, but it is not without weaknesses. It sweeps very broadly in its (understandable) desire to remain relatively brief. As a result, Rosen occasionally makes broad statements that one wishes he had taken the time to defend. For example, he indicates that “unilateralism is on the rise, and the commitment to bipartisan judicial restraint that united mainstream liberals and conservatives from the New Deal until the 1970s is now under siege” (p.202). This statement seems to suggest that the controversial decisions of the Warren Court were not unilateralist, since they were decided prior to the 1970s. Some of those decisions, such as BROWN v. BOARD OF EDUCATION, [*680] BAKER v. CARR, and REYNOLDS v. SIMS, are discussed, but other highly controversial decisions that are arguably unilateralist, such as MAPP v. OHIO, GIDEON v. WAINWRIGHT, and MIRANDA v. ARIZONA, are not mentioned at all.
There are also instances where he characterizes cases as unilateralist (such as the HAMDI and PADILLA cases) but does not explain why they are unilateralist. In his discussion of HAMDI and PADILLA, Rosen does not explain how these decisions are based on “a constitutional principle that is being actively and intensely contested by a majority of the American people.”
Sometimes Rosen seems a little selective as to the evidence he uses to find a national consensus or near-consensus for a law or constitutional principle. For example, as we have seen, Rosen argues that the Court’s decision in THE CIVIL RIGHTS CASES was unilateral. The evidence to support the notion the Court’s ruling was “actively and intensely contested” seems to be that the lame duck Republican Congress was able to muster a majority in support of The Civil Rights Act of 1875 (prohibiting racial discrimination in places of public accommodations). However, Rosen also concedes that public views were becoming increasingly racially intolerant by 1883, when THE CIVIL RIGHTS CASES were decided.
Rosen also does not give much attention to opposing points of view. He seldom anticipates and counters arguments that could be made against some of his assertions. This is both a strength and a weakness. It makes the book shorter (and arguably more accessible to undergraduate students), but it forces the reader to discover the weaknesses in Rosen’s approach.
These criticisms do not change the fact that this is a well-written book that even most undergraduate students should be able to understand. The pace is swift enough that students should not lose interest (even while conceding that some students will never be interested in the first place). Another strength of the book is that, even though Rosen is a lawyer, he does not ignore relevant social science literature. Rosen has read and refers to the work of Robert Dahl, Walter Murphy, Gerald Rosenberg, Robert McCloskey, Howard Gillman, and C. Vann Woodward (as well as others). The book should effectively stimulate discussions about the proper role of the courts.
BAKER v. CARR, 369 U.S. 186 (1962).
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
BUSH v. GORE, 531 U.S. 98 (2000).
THE CIVIL RIGHTS CASES, 109 U.S. 3 (1883).
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857). [*681]
GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
MAPP v. OHIO, 367 U.S. 643 (1961).
MARBURY v. MADISON, 5 U.S. 137 (1803).
MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
REYNOLDS v. SIMS, 377 U.S. 533 (1964).
ROE v. WADE, 410 U.S. 113 (1973).
RUMSFELD v. PADILLA, 542 U.S. 426 (2004).
SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).
STUART v. LAIRD, 5 U.S. 299 (1803).
© Copyright 2007 by the author, Jack E. Call.