The Most Democratic Branch: How the Courts Serve America

Overview

Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people.
In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal ...

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Overview

Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people.
In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster.
To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history—cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows that the most notorious constitutional decisions in American history—the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade—have gone against mainstream opinion. By contrast, the most successful decisions—from Marbury v. Madison to Brown v. Board of Education—have avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law.
Jeffrey Rosen is one of the most respected legal experts writing today, a regular contributor to The New York Times Magazine and the Legal Affairs Editor of The New Republic. The provocative arguments that he puts forth here are bound to fuel heated debate at a time when the federal judiciary is already the focus of fierce criticism.

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Editorial Reviews

From the Publisher
"A significant polemic from an important writer.... Rosen has emerged as the nation's most widely read and influential legal commentator."—Los Angeles Times

"A well-reasoned effort that raises provocative questions about how the Supreme Court might approach looming issues.... Rosen 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."—Publishers Weekly

"A compact, elegantly argued, and highly readable survey of American constitutional history."—Commonweal

"This book will be, and should be, widely read. The proper relationship of constitutional law to politics is one of the most controversial issues in American life today, and Rosen understands that relationship better than anyone. Filled with important insights—and real wisdom—The Most Democratic Branch is simply terrific. For those seeking a path out of the judicial polarization of the past decade, you need look no farther: Rosen shows the way."—William J. Stuntz, Harvard Law School

"Jeffrey Rosen defies everything you think you know about the court with a counter-intuitive argument of great power concerning both how the court has behaved in the past and how it should behave in the future. He attacks our heroic visions of the Supreme Court as a grand check against majority rule and recasts its general history as one of deference to the constitutional vision of majorities. Rosen's is a theory of adjudication for grown-ups; those at once concerned to limit judicial power and impatient with shrill doctrinal prescriptions for doing so. An important and impressive work from one of America's most insightful legal commentators."—Benjamin Wittes, Editorial Writer, The Washington Post

"Jeffrey Rosen is America's most insightful public commentator on the Supreme Court and the Constitution. Beautifully written and persuasively argued, The Most Democratic Branch makes constitutional law accessible to ordinary citizens while simultaneously challenging legal experts to rethink their views on the Court's role in American democracy."—Michael J. Klarman, author of the Bancroft Prize-winning, From Jim Crow to Civil Rights

"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.... Rosen's book is, like everything he writes, terrifically smart and useful and thought-provoking."—Slate

"Articulate and thoughtful."—The American Prospect

"Jeffrey Rosen makes a powerful and accessible case for a restrained judicial role, one that will challenge liberal proponents of Warren Court activism and conservative proponents of Rehnquist Court activism. His work combines sound historical scholarship with important prescriptions for contemporary constitutional politics."—Mark A. Graber, University of Maryland

"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.... The book should effectively stimulate discussions about the proper role of the courts."—Law and Politics Book Review

Publishers Weekly
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) Copyright 2006 Reed Business Information.
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Product Details

  • ISBN-13: 9780195174434
  • Publisher: Oxford University Press, USA
  • Publication date: 6/28/2006
  • Series: Institutions of American Democracy Series
  • Edition description: New Edition
  • Pages: 256
  • Product dimensions: 8.30 (w) x 5.70 (h) x 1.00 (d)

Meet the Author

Jeffrey Rosen is Professor of Law at George Washington University. Named by The Chicago Tribune as one of the best magazine journalists in America, he is the author of The Unwanted Gaze and The Naked Crowd, and his essays and commentaries have appeared in The New York Times Magazine, The Atlantic Monthly, The New Yorker, and The New Republic, where he is the Legal Affairs Editor.

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Table of Contents

Acknowledgments
Preface
Introduction: The Most Democratic Branch
Chapter 1. Cautionary Tales
Chapter 2. Race
Chapter 3. Love and Death
Chapter 4. Politics
Chapter 5. Civil Liberties
Epilogue: Constitutional Futurology, or What are Courts Good For?
Notes
Index

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