Ask The Author: Jeff Rosen, Part III

This is the final installment in our discussion with Jeff Rosen about his new book, The Most Democratic Branch: How the Courts Serve America. For previous installments, see Part I here and Part II here.

Q: Thanks for taking questions. The book was great.

Under your theory, it seems that US v Morrison (holding that Congress lacked the power to enact the Violence Against Women Act) was a huge failing of the Court, taking the issue away from the democratically accountable actor and striking down a statute that had public, congressional, and state attorney general support.

Now that the decision has been made: when do these democratic concerns become more important than stare decisis? If you were on the Court now, would you overrule Morrison or is the strength of precedent more important?

-Seth Gannon

JR: Many thanks for the nice words and glad you liked the book. As for stare decisis: like most accounts of constitutional history, I don’t have a comprehensive theory of when judges should uphold precedents with which they disagree. But I like former Judge Luttig’s idea of “super stare decisis” — namely, when a decision has been repeatedly reaffirmed by justices appointed by presidents of different parties and confirmed by Senates controlled at different times by Democrats and Republicans, it may be entitled to special respect and should not be lightly overturned. This resonates with my concern about judicial unilateralism and allows judges to express respect for the constitutional views of Congress and the President and ultimately the American people. There’s room for debate about how to apply the idea of “super stare decisis” when it comes to the Federalism cases; but generally, as you suggest, I think judges should defer to Congress in the face of uncertainty. And I’m inclined to think that judicial flyspecking of Congress’s power is more of an agenda item for the Republican base than a constitutional principle clearly embraced by a majority of the American people. For that reason, I wouldn’t shed any tears if Morrison were overturned.

Thanks to all for such provocative questions, and thanks to Jason Harrow for including me at the beginning of this fine experiment. I enjoyed the exchanges and appreciate the opportunity to discuss the book.