Ask The Author: Jeff Rosen, Part I

Jeff Rosen is here, as promised, with his responses to several questions about his new book, The Most Democratic Branch: How The Courts Serve America. Thanks to all who submitted questions to me. We will post Part II of his responses later this afternoon; after that, Jeff is willing to respond to one more round of questions, so use the comments feature or e-mail jharrow [at] akingump.com with any follow-up questions that Jeff’s answers provoke. Without further ado:

JR: Many thanks to Jason Harrow and the readers of SCOTUSblog for sending such thoughtful questions, and for the opportunity to discuss The Most Democratic Branch. Just to recapitulate the thesis: The book argues that the Supreme Court, throughout its history, has been least successful when it’s acted unilaterally – that is, when it has tried to impose constitutional principles that are being actively and intensely contested by a majority of the American people. I argue that other institutions of government – such as Congress, the President, and the states – have, in the past, played an important role in representing the people’s constitutional views. And in the face of uncertainty about what constitutional principles of the people of the United States regard as fundamental, I suggest that courts in the past have served themselves well by practicing judicial restraint – in other words, by deferring to the political branches and upholding federal and state law rather than striking them down. These two principles – 1) avoid judicial unilateralism and 2) defer in the face of uncertainty – don’t have a huge constituency on the right or the left at the moment, but I’m gratified that the book seems to have provoked a lively discussion about the salience of the tradition of bipartisan judicial restraint.
So, with those preliminaries out of the way, I’m pleased to answer the questions the questions that Jason emailed.

Topic 1: Questions about specific decisions

JH: I received a few questions asking for you just to comment on some recent, high-profile decisions in light of your overall theory. How do the recent state-court decisions regarding gay marriage fit into your thesis? How about Hamdan v. Rumsfeld? The recent redistricting decision in Texas?

JR: Hamdan for me is a good example of the Court doing what it does best –- not unilaterally presuming to short-circuit political debates but instead promoting a bilateral dialogue between the president and Congress. The Hamdan Court said that President Bush was free to ask Congress to create military commissions to try suspected enemy combatants, but he couldn’t unilaterally violate the procedures for military commissions that Congress had adopted. Justice Stevens’s opinion for the Court invoked Justice Jackson’s Steel Seizure opinion for the principle that “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” And in the wake of Hamdan, the Bush administration has finally gone to Congress to ask for the authorization that it should have requested five years ago. For all these reasons, I think that Hamdan was correctly decided and should provide a model for the kind of dialogue between the president and Congress that the Court is uniquely well situated to promote.

The Texas redistricting decision is part statutory and part constitutional. I don’t have a dog in the statutory fight about whether or not the challenged districts violate section 2 of the Voting Rights Act. But I agree with the decision of the majority of the Court not to strike down the Texas districting plan as an unconstitutional political gerrymander. In the book, I acknowledge that there is a strong temptation, for those who care about democratic constitutionalism, to urge courts to strike down political gerrymanders that make it harder for legislatures to reflect the wishes of a majority of their constituents. Nevertheless, I agree with Justice Scalia that it’s difficult to articulate a principle for striking down political gerrymanders that a majority of the American people unequivocally accept – neither Congress nor the White House nor the states nor the Fourteenth Amendment as originally understood have converged around a definition of unconstitutional political gerrymandering in the past. Until they do, I think the Court would be ill-advised unilaterally to invent its own definition of political gerrymandering – as Justice Kennedy, in his Hamlet-like way, seems to be contemplating. And with great reluctance, I fear that political gerrymandering, at least for the foreseeable future, may be a problem without an obvious judicial or political solution.

As for the gay marriage decisions, I’m relieved that the New York Court last month managed to avoid the error of the Massachusetts Supreme Judicial Court in 2004 and refused unilaterally to create a right to gay marriage at the very moment when the scope of that right is being intensely contested by a majority of Americans. (For a thoughtful attempt to view both decisions through the lens of democratic constitutionalism, see Andrew Cohen’s piece here).

I’m one of those gay marriage supporters who thinks that the Massachusetts Court did the cause of gay marriage no favors by imposing it ahead of schedule – the backlash against the Massachusetts decision lead to at least 13 anti-gay marriage state constitutional amendments and may have cost John Kerry the election in Ohio. Given polls suggesting that young Republicans as well as Democrats support gay marriage far more enthusiastically than older voters, I have little doubt that, within a generation, many states will come to recognize a right to gay marriage on their own. If and when a majority of states have recognized the right, the Supreme Court might recognize it as well – as the Court did in Griswold when it strike down the only law banning the right to use contraceptives in the nation. But if the Supreme Court acted precipitously to impose a right to gay marriage in the next few years – unlikely, given the Court’s current composition – I think it would do the cause no favors. Like abortion in 1973, recognizing a sweeping right to gay marriage in 2006 would only lead to a backlash.

JH: Of course, I couldn’t conduct this exchange without mentioning Roe v. Wade. In the book, you are quite critical of the decision, even if you might be pro-choice personally. If it were to be reversed, would you welcome the decision as a return to judicial modesty, or would you mourn the loss of a freedom you believe women should have? Moreover, do you think the opinions of the public or any state legislatures could really be changed if, in some future case, the result of Roe was upheld (access to abortions, at least early in the pregnancy) but on different constitutional grounds? Does the general public really care about judicial reasoning at this point in the abortion debate, or are the two-sides too entrenched?

JR: My attempts to think through what might happen in the (I think unlikely) event that Roe were overturned are set out here.

Eventually (although not immediately) I think Congress and all but a handful of the most conservative states would reflect the moderate consensus about abortion that has been remarkable stable since 1973 – namely early term abortions would be protected and late term ones would be restricted. In practice, as the Atlantic piece suggests, I don’t think this would lead to a loss of freedom for very many women, although the burdens of the new restrictions would fall disproportionately on poor women. This would be unfortunate, for pro-choicers like me, but over all, I think the pro-choice cause, and the Democratic Party more broadly, would benefit greatly from the overturning of Roe.

You also ask whether public opinion might change if Roe were upheld on different constitutional grounds. Because public opinion about abortion has remained more or less unchanged in every Gallup poll since 1973, I think it unlikely to change in the immediate future no matter what the courts do. But over time, judicial reasoning can influence public opinion: the South took only a decade to accept the Brown decision (after the passage of the Civil Rights Act of 1964) because the principle that mandatory segregation had the purpose and effect of declaring that African Americans were inferior was too obvious even for obstructionists to deny. (As the first Justice Harlan noted in Plessy v. Ferguson: everyone knows the real purpose of segregation – especially those who grew up in the South.) If Roe were explicitly framed as a way of protecting women’s equality rather than privacy – that is, as a way of ensuring that women have the same opportunity to direct the course of their lives and careers that men do – that might be easier, in the long term, for some skeptics to accept. But not in the short term: by and large, with only a few exceptions (Brown may be one of the exceptions) judicial opinions reflect the public’s views about constitutional issues rather than shaping them.

Part II is coming later today. Submit any further questions as comments on this post or to jharrow [at] akingump.com.