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The Most Democratic Branch
Jeffrey Rosen
How the Courts Serve America
Institutions of American Democracy Series
Oxford University Press
June 2006
256 pages ISBN: 0195174437 Hardcover
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Non-Fiction Political
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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