It has become something of a vogue among liberal legal academics to draw an intellectual Maginot line between themselves and the landmark Supreme Court decisions of the 1960s and '70s. There is a deep sense of something—is it shame?—informing their views of those reckless Warren Court do-gooders and their well-meaning, slobbering efforts to protect women, minorities, and criminal defendants.
There is no sharper critic of the Supreme Court than the New Republic's Jeffrey Rosen, and there is no finer ambassador between the planet of legal academia and that of the popular media. That's why Rosen's newest offering, The Most Democratic Branch, is so radical. Following in the wake of Radicals in Robes, a call to judicial "minimalism" byUniversity of Chicago Law School's brilliant Cass Sunstein, it gives both a body and a voice to all this progressive uneasiness. First, Rosen channels some of the most agonized liberal legal scholarship (Roe v. Wade was both badly decided and terrible for progressives; Brown v. Board of Education wasn't really all that central to the project of desegregation). Then he ties it all up with this neat prescriptive bow: Supreme Court justices, in order to do justice, should do almost nothing at all.
It has also become something of a vogue for conservatives to balk at these seeming converts to their cause: Right-leaning critics of both books call this sudden liberal love-affair with judicial modesty and humility (and ergo, with Chief Justice John Roberts) a cynical eleventh-hour attempt to constrain a Supreme Court that has suddenly tilted dramatically to the right. But that isn't fair. Liberal legal scholars have been struggling for decades to justify the result of Roe and its progeny as an intellectual, rather than political, matter. And Rosen has himself long been an advocate of moderation and minimalism. His model here is Alexander Bickel, the legal thinker whose book The Least Dangerous Branch is clearly the inspiration for Rosen's. Like Sunstein, Rosen is trying to find some principled means of tethering judges wherever they are on the ideological spectrum—a response to the inevitable charge from both sides that the judges on the other side make things up.
Like many moderate progressives, Rosen agrees with the outcomes of Brown, and Roe, and many other Warren and Burger Court opinions. But he also recognizes that many of those decisions were badly reasoned and extravagantly—even arrogantly—overwrought in constitutional scope. Rosen wants to root the best results of the Warren era in some fixed principle, even if that principle would be unrecognizable to Warren himself.
It is, I suppose, to the credit of conservative legal thinkers that their intellectual opponents so readily embrace their conclusions, if not their draconian "originalist" methodology. But even those who agree with Rosen's project might find themselves baffled by his dramatic prescription: That the only cure for an overreaching, un-constrained, Warren Court is the creation of a new, impotent one.
Rosen rejects the "romantic myth" of "antidemocratic courts protecting vulnerable minorities against tyrannical majorities." He contends that "the least effective decisions have been those in which courts unilaterally try to strike down laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people." And then he urges that if the courts want to maintain "democratic legitimacy" they must become safe, cautious; forever lagging one step behind Congress and the public-opinion polls.
There are two problems with this prescription: The first is practical and the second is normative. As a pragmatic matter, Rosen is never terribly clear as to how the courts are meant to divine public readiness for big constitutional change. He claims that "polls are hardly a reliable indicator," and concedes, as he must, that "judges are not supposed to follow the polls." Yet as he works through case after case, classing decisions as either constitutional successes or reckless overreaching, his predominant support lies in the contemporaneous polls he cites.
More troubling, he claims that the nation was ready for the dramatic constitutional shift in Brown v. Board because "over half the country" supported it, whereas the court's decision in Roe v. Wade was an affront because 52 percent of the country supported it. To be sure, Rosen can slice and dice that data to suggest that the country wasn't really ready for Roe, even though the polls suggested it might have been. And it isn't inconsequential that the court had the support (admittedly grudging) of the executive branch in handing down Brown. But as Rosen himself proves, by futzing with these equivocal numbers, it's not possible to know with any certainty what the country is ready for—particularly when the polls show the public to be about evenly divided on some constitutional question.
Which means that Rosen isn't simply calling for justices who follow the polls. He is calling for justices who make lucky guesses about which way those polls will eventually trend. The best justices don't just follow the crowd. They also predict the future. Rosen thus says of the 2003 decision in the case striking down the Texas ban on homosexual sodomy that "Once national support for gay marriage materializes, Lawrence v. Texas may be seen, in retrospect, as the Brown v. Board of Education of the twenty-first century, an example of the justices accurately predicting the future." We won't really know if Lawrence was the right constitutional decision until the polls bear it out. It always struck me as rather a sad project for Supreme Court justices to try to imagine what dead white Framers would have done in any given scenario. But it seems almost sadder for them to attempt to divine what their unborn great-grandchildren might do in the future.
It's going to be troubling for both liberals and conservatives to hear Rosen argue that bans on gay sodomy were constitutional in 1986, when the court handed down Bowers v. Hardwick (again, he cites polls saying that 51 percent of those polled at the time approved of Bowers), but such bans had probably become unconstitutional by the time Lawrence came down in 2003. If the object here is to increase the court's "democratic legitimacy," it's hard to imagine a surge of national confidence in a court (and a Constitution) that can change direction on a dime.