The Most Democratic Branch?

GUEST: Jeffrey Rosen
VTR: 06/22/2006

I’m Richard Heffner, your host on The Open Mind. And the half dozen times that today’s guest has joined me here before have always focused on his considerable concern about threats to Americans’ privacy and individual freedom in our so-called “anxious age”.

Seemingly, not so today.

For now I’ve invited George Washington University law professor Jeffrey Rosen, Legal Affairs Editor of The New Republic, and frequent contributor to the New York Times Magazine and other major journals of opinion to discuss his new Oxford University Press volume, The Most Democratic Branch … How the Courts Serve America.

And I feel constrained today to begin by asking my guest quite what he means by his title and whether it in any way reflects a somewhat lessening concern that American courts – certainly our High Court – stand or should stand as a barrier to further inroads upon individual freedom.

ROSEN: Well, the title, of course is meant to be provocative … we’re taught since high school to think of the Supreme Court as the least democratic branch and this heroic bulwark protecting vulnerable minorities against the tyranny of the majority.

This book argues that that, that familiar vision is a romantic myth, that throughout American history the Court has tended to reflect the views of popular majorities rather than challenging them. And on the rare occasions when it’s tried to get out … very far ahead of public opinion, it’s often provoked backlashes that have harmed the very causes it’s tried to help.

HEFFNER: But you know, Jeffrey, one of the things that concerns me most is that I read, I feel as I read you book, and it’s a very impressive volume, that you’re saying it should stand the one way rather than the other. You’re sort of not only denying the romantic myth, but dismissing it by choice.

ROSEN: Most of the book is descriptive. And says “this is the way it’s been, and here’s when the Court has gotten into trouble.” It’s not a “how to interpret the Constitution book”, it doesn’t offer a grand theory of what judges should do.

But it is a strenuous and extended defense of judicial modesty and restraint. And it does say that judges, by reflecting the Constitutional views of the people, not by following the polls, or by anxiously trying to do what the public demands day by day, but by reflecting the deeply felt constitutional views of the people can best serve its function as an institution of democracy.

HEFFNER: When did we learn that the public, the grand unwashed public, has profound Constitutional views?

ROSEN: Well, almost every Constitutional theory in some way claims to speak for the people. Constitutional originalists, conservatives who think that the Constitution should be interpreted in light of its original understanding … say that judges should look to the people who are authorized to speak for the public at moments of heightened Constitutional change, namely at the time of the framing and of reconstruction.

Constitutional pragmatists say that the Court should be sensitive to the views of the other branches of government and should defer to the Constitutional views of Congress.

Now, it is the case that Congress and the political branches debated issues in much more explicit Constitutional terms early in the Republic than they do today.

You look at the debates near the time of the framing about the Constitutionality of a national bank and the quality of arguments in Congress … is better than that in the Supreme Court.

Now, of course, the idea that our current solons in Congress are able to debate Constitutional issues in very high terms is hard to sustain. And that raises a tough question for my historical account which is, “Where should the court look if Congress is no longer a good representative of the people, where can it find those views?”

HEFFNER: Which brings me back to the question of the “shoulds” here. Where does Jeffrey Rosen believe the Court should sit or stand?

ROSEN: Well I believe that this … that the Court should be rigorously restrained. And it’s not the case … as you know from our previous conversation about privacy … that those previous books ever argued that the courts would save us from the threats to privacy and individual liberties that menace us.

On the contrary, I argued there that, as anxious as the crowd is and as voluble at times …in the end salvation would have to come from politics rather than from the courts.

And this book, which was great fun to write and awfully interesting for me, is, is an attempt to sustain that argument across the range of issues that the courts have confronted. Not just privacy, but also civil liberties and wartime … race … abortion … the regulation of politics.

In all of these issues I found that that pattern held. It’s not to say that the Judges are potted plants, that they have no role to play … after a strongly held Constitutional view has crystallized, judges can usefully enforce it and force the political branches to abide by it … free speech is the best example here.

But the idea that Constitutional change comes primarily from the Courts rather than from politics is a descriptive myth. And I don’t think that judges should delude themselves into thinking they can play that role.

HEFFNER: If you were to … one were to accept that, and I know how enthusiastic you are for that point of view. How sanguine are you then for your preservation of individual freedoms and liberties. Because if you say “the people shall judge” on Constitutional issues or your assumption is that the Court will follow the election returns and that the public will be concerned about Constitutional views … again I ask where are there manifestations of public concern about issues relating to the Constitution?

ROSEN: Well, we see them every day in all of our great debates. The debate over the Patriot Act and the balance between liberty and security today created this unusual alliance that we’ve talked about between Libertarian Conservatives and Civil Libertarian Liberals.

And that view actually was reflected in the reform of several badly designed surveillance programs. I think you … to answer your question … you’d have to be pretty optimistic if you took a view that the Courts were the most democratic branch. Because over time, salvation in America hasn’t come from the courts, but from the people. We’ve gone through much more serious threats to liberty than we face today; during the Civil War and even at the time of the framing.

And with false starts and bumps in the road, the people, over time, have embraced a quite Libertarian view of American liberty.

HEFFNER: You’re suggesting then, that my view is wrong. My view as I read the book … “my goodness, where is this young man going? He’s changing. He’s shifting.” Is that unfair, totally?

ROSEN: Oh, I think it is. I, I … hmmm, I went out of my way in those previous books to disavow any notion of the courts as salvation.

I think we had more disagreement when we talked about whether the public was reliable in the war on terror. And you thought I was a little harsh, perhaps on the anxious risk … zero risk mentality of the public.

If there’s a change I, I suppose it might be that when I look at the range of American history, I’m less hard on the public then I was perhaps in looking just at the liberty and security question.

But no change at all in the broad idea that courts should play a modest role in American society and civil liberties should be protected mostly by the political branches.

HEFFNER: Well I’m fascinated that even as I talk I can turn to the Atlantic Monthly and read this piece that you’ve written “The Day after Roe” in which you’ve taken one of the issues that you deal with in your new book and you write or here the headline reads, “If the Supreme Court overturns Roe v Wade it will set off tectonic shifts in the American political landscape not seen since the Civil Rights Movement or perhaps even the Civil War.”

ROSEN: This was a wonderful exercise in Constitutional futurology … wonderful only in that it was the Editor’s idea and I very much enjoyed writing it.

What would happen if Roe were overturned? I’m not saying I bet on that happening, but just for the sake of argument, let’s assume it’s the day after Roe.

If we lived in a government by referendum, the day after Roe, the moderate views of the public which have remained pretty consistent since the early 1970s would be enacted into law. Namely, early term choice would be protected and late term abortions would be restricted. The poll numbers have been the same for the past 30 years.

But we don’t live in a government that rules by referendum, it’s a complicated Federal system and because of the nuclear battles at the state level, in Congress, because of political pathologies that lead state and Federal legislators to spend more time pandering to their bases … the Liberal and Conservative extremists, then representing the views of the moderate majority … it might take decades for that moderate consensus to be reflected in law.

HEFFNER: And if it is overturned quickly … what do you think will happen?

ROSEN: Well, hypothetically, if it were overturned during President Bush’s term it would be a devil of a challenge for the Republicans because only 20% of the public or less really wants to have serious restrictions on early term abortions.

In South Dakota which passed an extreme abortion ban recently, the ban was so un-public that repeal has been introduced and 60% of the South Dakotans are against it.

So you can image an awkward situation where Congress, a Republican Congress tries to introduce serious restrictions on early term abortions, this galvanizes the Democrats and leads to a shift in the partisan control of the Senate and House.

It would be a godsend for Hillary Clinton, I’m sure she’s quietly, you know, praying for something like this to happen because a candidacy like that of John McCain would evaporate into air. Right now he’s seen as a cuddly moderate who is liberal on social issues, but he’s a fierce pro-lifer … has made clear that he’ll stick with that position. Suddenly he would be mistrusted … certainly by moderates and liberals, and he remains mistrusted by conservatives as well. So he would have an awfully tough time if Roe overturned.

HEFFNER: What do you see as happening over the next months? Or in the two years between the ’06 elections and the ’08 in terms of court actions?

ROSEN: Well the court has agreed to hear two important challenges to the Federal law banning partial birth abortions … late term abortions. And there’s a decent chance, a good chance that it will overturn its decision from a few years ago striking down those laws. And uphold partial birth abortion laws.

If this happens, pro-choice advocates will say that the sky is falling and the Roe is on the verge of being overturned and it’s a catastrophe for the liberal side.

I disagree with this strongly. I think that the court, to get back to the pieces of the most democratic branch, made a mistake several years ago, when it struck down partial birth laws, which are supported by more than 70% of the country.

What the court could do, if it overturns those decisions, is protect early term abortions, but restrict late term abortions, which is exactly what that moderate majority I was talking about wants.

And also partial birth abortion is a red herring. It allows Republicans to focus the debate on the least popular form of the pro-choice movement.

If that distraction were taken off the table, which affects extremely few abortions, we’re talking really about a symbolic, rather than a meaningful restriction on abortion, then the debate would focus more on the issue that Democrats benefit from which is the threat to early term abortions which is where the most women have their abortions. So I will shed no tears if the partial birth case comes out the other way.

HEFFNER: Well the thesis about the court being at its best when it reflects American public attitudes. I, I understand that. But then when you apply that in your book to Brown versus Board of Education, are you quite so certain that the Court was reflecting … a unanimous court was reflecting American public attitudes.

ROSEN: Brown was popular with 54% of the public … when it came down.

HEFFNER: Pretty narrow, huh.

ROSEN: But the claim is not that the court should only act when the public is unanimous. I say that it should avoid judicial unilateralism which I offer a tentative definition of as … an effort by the court to impose a view which is intensely contested by a majority of the country.

The idea that segregation was unconstitutional in 1954 was not intensely contested by a majority of the country, it was intensely contested by a minority of Southern … Southerners, in particular who had a lock on Congress and therefore prevented Congress from acting.

But majorities of the country were at least willing to accept this view and that’s why the court had the leeway to act as it did.

HEFFNER: Well, it, it surprised me because there was an assumption there that I, I … having lived through the time and known what the reaction to Brown was … at least as I read it in the press … I was wondering whether Jeffrey Rosen was furthering his thesis, but not being quite as accurate as I would have him be.

ROSEN: Again … the thesis is trying to be subtle. It really is trying to ask, when does the court have the leeway to engage in a grand gesture as in Brown?

And it has the leeway when the view that it’s imposing is not going to be rejected by a majority. And Brown was not one of those cases.

HEFFNER: When does leadership play a role? In something like Brown?

ROSEN: It must be. It must be. Now Brown is our hardest case. It’s hard for Constitutional theorists, so it’s hard for a descriptive account like mine.

HEFFNER: That’s why I pick on it.

ROSEN: Of course you should, you should. And it’s an important test for any theory and my ability to account for it is an important test of the, of the claim.

So occasionally the, the court in its history has exercised leadership … I say it’s had the ability to do that when the country is willing to accept it. But let’s just remember how rare the browns are.

HEFFNER: Do you want them to be rare?

ROSEN: Absolutely. They must. Much better for that change to come from the political system. And, of course, we also know from the work of important political scientists that genuine desegregation did not occur in 1954.

It was only after the Civil Rights Movement, supported by Congress and eventually the President passed the Civil Rights Act of 1964, supported by Executive Orders, that desegregation occurred. So even Brown is now understood to be misunderstood as a bolt of lightning where the court imposed social change on its own.

HEFFNER: Because one of the very few question marks that I wrote into the book as I read it … actually I see it’s an exclamation point …

ROSEN: Oh, that’s better.

HEFFNER: “Brown didn’t merely reflect a Constitutional consensus, but also helped one to crystallize” and that is not said, written as a criticism.

ROSEN: No. By no means and again I want to stress that the formation of Constitutional views is a complicated interaction between and among the various branches of government and the public.

And the court does have a role to play. It’s not mechanical and it’s not utterly passive.

HEFFNER: What do you see as the role the court should play? What do you want from the Supreme Court of the United States?

ROSEN: When I think of the greatest Supreme Court opinions, the ones that are accepted as being deeply rooted in Constitutional principles, they, they take principles that have been formulated in the political arena and then force the political branches to uphold them.

So free speech is the great example. The principles of free speech namely that it can only be banned if there is an imminent threat of lawless action were formulated in the debates over the Alien and Sedition Acts. And then at the time of Reconstruction when Northern opinion was appalled by the Southern suppression of abolitionist speech … even in World War I during the great suppressions of free speech, Congress debated its boundaries carefully and was more libertarian than judges were at the time.

Finally by the 1960s, when the country was willing to accept vigorous restrictions on government in the name of free speech, the courts beginning with cases like the Pentagon papers were able to enforce those consistently.

And nowadays, it’s uncontroversial among Liberal and Conservative judges that the President and Congress should have to respect free speech.

The courts just do a wonderful job once the principle is unequivocally recognized as being of Constitutional status in applying that neutrally.

HEFFNER: And if 9/11 were to be repeated or something as horrific. Wouldn’t’ you find, as we’ve discussed before, a changing, a shifting public opinion? And wouldn’t you then look in terms of your thesis to the courts, to uphold … not these nicely moving Constitutional principles, as of the moment, but principles moving in the other direction?

ROSEN: Well, the question is what are those principles? And when we look at the years since 9/11, we see that the court hasn’t done a very effective job in trying to impose visions of the rights of enemy combatants, for example, unilaterally, without Congressional support.

It had that rather high-handed Hamdi opinion in 2003 where it said, “Congress you don’t have to create procedures for detention. We’ll give you the guidelines on our own.” And Congress responded to that decision by essentially overturning it and by removing habeas corpus for many detainees.

By contrast, during World War II, the court was more sensitive to Congress’s views and it said, “Detentions that are authorized by Congress, explicitly, we’ll reluctantly uphold. But those that are imposed by Executive officials on the ground without Congressional participation we will strike down.”

If the court had been more sensitive to Congress’s views after 9/11 I wonder if even civil liberties would be in better shape. And Congress wouldn’t have been forced to express itself and make its own views clear.

HEFFNER: That … forgive me … it’s a kind of logic that I find it hard to, to follow or to accept. The picture I have when, when Jeffrey Rosen writes a book called “The Most Democratic Branch” and answers the question how the courts serve America, really the question how the courts could best or do best serve America … answer it in terms of reflecting public opinion. Isn’t that what you’re saying?

ROSEN: Reflecting public opinion about what values are Constitutional. Isn’t …

HEFFNER: MmmHmm.

ROSEN: … that what judges are supposed to do? No one disputes that that’s what judges are supposed to do. The question is how do you identify the values that are of Constitutional status?

And its just folly, it’s just a romantic myth … it’s, it’s a wonderful fairy tale to think that judges are going to pluck these imputable brooding omnipresent values out of thin air and impose them in the teeth of political opposition.

With a little humility to the competing views of the political branches, judges would realize that those branches have actually played a much greater role in defining these values than they have throughout history. And they’d also be more savvy and wouldn’t provoke these unfortunate backlashes.

HEFFNER: You … you’re really talking again about your quotation from Mr. Dooley.

ROSEN: In a way. The idea that the courts follow the election returns is descriptively accurate. And actually, to a precise degree you see them sometimes leaping ahead when … the court on the Dred Scott case did this … when the Democrats won the election of 1856 … the Court was trying to oppose the view of Democrats even though the sitting Congress and the President were still Republican …and got into terrible trouble.

But I want to say it again. I’m not saying that the Court should just follow the polls, or the election returns, in a crude sense. That’s not what judges do. They should be sensitive to the Constitutional views of the American people as reflected by the political branches and that’s the way to avoid trouble.

HEFFNER: Why do you say, “the Constitutional views?” Why not … why don’t you say … use the word “political” in both instances. The political views of the American public.

ROSEN: Because judges are supposed to enforce the Constitution in the face of political disagreement.

HEFFNER: Yes, but then you’re, you’re simply plucking the word Constitutional out and applying it when we’re really talking about political views.

ROSEN: I don’t think so. Take any example. Free speech is one.

HEFFNER: Yeah.

ROSEN: Should Congress be able to pass a law prohibiting the burning of flags. That’s a political view. Flag burning is a really bad thing, we have to enforce patriotism.

The Constitutional view is that you can’t ban speech unless there’s some threat of imminent lawless action. That’s a Constitutional view that was debated in Congress by politicians and is now enforced by the courts. And that’s why I think Courts are absolutely right to strike down a flag burning law in the name of this Constitutional principle that has been accepted and debated by the people’s political representatives.

It’s a subtle distinction, but we could run through all of the great areas in distinguishing between political and Constitutional views and I absolutely believe that it’s the Constitutional rather than the political views judges should enforce.

HEFFNER: What do you see happening in the Court? The present Court.

ROSEN: Well, this is one of the great puzzles of the future that very much engaged me. Over time … in the past … the Courts have tended to reflect the people’s Constitutional views. But there are, at the moment, on the Left and the Right … very influential movements calling on judges to diverge from that historical pattern and to impose hotly contested visions of the Constitution, despite what majorities want.

On the Left, these views take the form of calling for the imposition of international law values and striking down gay marriage, for example, as well as the death penalty in the name of a purported international consensus, despite what the American people think.

And on the Right the views take a form of resurrecting a form of Constitutional libertarianism, that some call “the Constitution in exile” and striking down restrictions on the regulatory state that have been accepted since the New Deal.

Will the Court heed these calls? We’ll see. I’m very keen and optimistic about Chief Justice Roberts who seems to me much more of a pragmatist than an incrementalist who is not susceptible in these ways. We’ll see what Justice Alito does.

But the very fact that these are … these views are in the air and that saying that the Court should follow public opinion is considered so controversial, suggests that we may see some changes on the horizon.

HEFFNER: Now are you talking, as you would have as our two new Justices … one the Chief Justice, were sworn in? Or in terms of what has happened in these past months?

ROSEN: When they were sworn in I think that these new forms of anti-majoritarian theoritizing have been in the air for the past decade or so. And there are certainly lower court judges on both the Left and the Right, who are sympathetic to these views. Witness the Supreme Court of Massachusetts decision to strike down gay marriage with some citations to international opinion.

And witness the lower court judges who have been Libertarians of the most enthusiastic kind. So far no Supreme Court Justice, except for Clarence Thomas, has embraced that form of Constitutional libertarianism and Justice Kennedy, despite his citations to international law, which have infuriated the Right, has not wholeheartedly embraced the Liberal version of this either. But that’s why I’m so eager to see what the new Justices will do.

HEFFNER: Why do you think Kennedy has so infuriated … because they were counting on him?

ROSEN: Oh, even worse than that. Can you image, if you were a Conservative … the Bork seat … the seat that’s supposed to crystallize the Reagan judicial revolution, going not only to a … wishy-washy character who didn’t vote with you, but someone who would embody all of your wildest nightmares about Liberal cultural war elitism and internationalism. You can just see their heads spin as they think about him. I think that he infuriates them even more than Souter in this regard.

HEFFNER: Are you … willing to make some guess … look into the crystal ball about the two new judges … two new Justices?

ROSEN: It wouldn’t be worth much. Except for my great fondness for Roberts, who I’ve had just some dealings with and have been admiring his opinions and his speeches. I do think he said, in recent speeches, that he sees the role of the Chief Justice as a unique leadership role that should encourage unanimity and should also decide cases on the narrowest possible basis. I was very encouraged to hear him say that.

HEFFNER: Is there a precedent for that for a Chief Justice who feels those points of view?

ROSEN: All the best Chiefs have strived for unanimity. Rehnquist tried to do it, but with less … with mixed success. I would say Hughes, of course, but the greatest and most important example is Marshall who was so convivial that he was able to bring together Justices of opposite temperaments, they liked him so much, they lived in the same rooming house, and he wrote unanimous opinion after unanimous opinion and the process just transformed the law.

HEFFNER: We don’t want the present Chief Justice to have to live in the same rooming house …

ROSEN: (Laughter)

HEFFNER: … with his colleagues.

ROSEN: No, I don’t think they can bear each other. (Laughter)

HEFFNER: Thank you so much for joining me again on The Open Mind … Jeffrey Rosen … and I commend “The Most Democratic Branch: How the Courts Serve (and I add Should Serve) America”. Thanks.

ROSEN: Pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. For transcripts please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.