Ask The Author: Jeff Rosen, Part II

This is Part II of Jeff Rosen’s discussion of his new book, The Most Democratic Branch: How The Courts Serve America (for Part I, see this post from yesterday). Jeff is willing to respond to one more set of questions later this week; use the comments feature or e-mail jharrow [at] akingump.com to submit any further thoughts that you have.

Topic 2: What if you were a Justice?

JH: Okay, so here’s the question that popped into my head again and again as I read the book. It begins with a supposition: let’s suppose, for the sake of argument, that your over-arching theory is 100% correct. Let’s say it’s true that the Court is given the most respect and that it functions most ideally when it gives a lot of deference to the views of the people, the president, and the Congress – in your words, the judiciary ought to be “coequal” with the other branches of government. Based on your historical examples, this is a very plausible claim.

But here’s the catch: you’ve just been confirmed as a Supreme Court Justice (nicely done). What happens when you’re faced with a dilemma like the following: on the one hand, you’ve got this nice view, supported by a plethora of examples, that shows how well the world works when the Supreme Court refuses to act unilaterally; as a Justice, you’d be wise to keep that in mind. On the other hand, it seems, are several factors that could pull you in the other direction – the first of which is that they chose YOU. They didn’t choose Mr. Zogby or Mr. Gallup or people whose life’s calling has been to figure out what the country thinks about things. Instead, the (popularly elected) president nominated you and a (popularly elected) Senate confirmed you. The one and only Jeff Rosen – who has a family, and a mind, and a legal education, and views on what is right and reasons why those views are correct.

But now imagine you’re not a Justice in 2006, but rather 1896, and you’re now faced with Plessy. About this type of case, you wrote at the beginning of the chapter on race: “It’s hard to avoid the conclusion that judges were most successful in enforcing civil rights when they followed a constitutional consensus about equality that was triggered by Congress or the White House, or both.”

You make it clear that in 1896, most people thought that the constitution did not prohibit segregation, but it’s safe to say that you think it does (the hope here is that your imagined self in 1896 was forward-thinking enough to have this belief). So could you in good conscience vote with your theory by deferring to the majority and against your own view that racial segregation is an outrage on human dignity that ought to be unconstitutional?

After all, on another controversial topic, the death penalty, Justice Blackmun did hold his personal views about the moral wrongness of capital punishment in check – until, of course, he could no longer do so in good conscience, famously dissenting from an order that allowed an execution to proceed with a deeply personal opinion that included the line, “From this day forward, I no longer shall tinker with the machinery of death.” How does one balance what might be a very successful theory with the knowledge that judges are merely human, and have moral compasses that aren’t always aligned with the majority of the country? Is it possible? Is it reasonable to think that good judges can do this better than most?

JR: If I were a Justice in 1896, how would have I decided Plessy? God only knows. I long ago weaned myself of the conceit that I could be a better armchair Justice than any of the real Justices, especially those operating without the benefits of hindsight. And in the book, I say explicitly that I’m not presuming to write yet another “how to interpret the Constitution” book championing one theory of interpretation over another. My goal is mostly descriptive, and my descriptive claim is that courts have been most effective in the past when they’ve tried to stay out of trouble and do no harm.

That said, Plessy strikes me as a hard case because, as I say in the book, it wasn’t obvious in 1896 whether or not a decision striking down railroad segregation would have been unilateralist. On the one hand, the Court could have held (as Justice Harlan did) that equality in civil rights was the core meaning of the Fourteenth Amendment, accepted by the American people even at the dawn of Jim Crow; that access to public transportation was a core civil right; and that only 6 states at the time of Plessy had mandated railroad segregation. Because a majority of the country wasn’t actively and intensely contesting the claim that the Constitution forbade railway segregation, even in 1896, I think Harlan was right to dissent in Plessy. On the other hand, as Michael Klarman argues, the unconstitutionality of segregation was hardly obvious in 1896: the Framers of the Fourteenth Amendment were divided on the question; and Plessy itself was so uncontroversial that it barely merited a mention in the leading newspapers. Therefore, a devotee of bipartisan restraint who took seriously the injunction that courts should defer to legislatures in the face of uncertainty might, in 1896, plausibly have joined the Plessy majority. Obviously, Holmes would have done so had been on the Court at the time – he almost never found an act of racial discrimination he was willing to strike down. Which side would I have been on if I were magically transported back in time? The side of the angels, of course – that’s the point of hypotheticals!

More broadly, you ask whether it’s reasonable to think that good judges can hold their own strong moral views in check in cases when those views diverge from those of a majority of the country. Certainly, I was taught in law school that reaching constitutional results that clash with your moral views – call it the Frankfurterian frisson – is an ideal worth aspiring to. I do think good judges – by which I mean modest judges – experience this clash more often than most, and yet the political scientists tell us that few judges suppress their strongly held views in most cases – not even Frankfurter and Holmes did. (Holmes took pleasure in upholding eugenics laws!)

One final thought, and then I’ll wrap up this round. Your question seems to suggest that pollsters would do a better job at discerning the people’s constitutional views than justices. In the book, I try to say clearly that judges are NOT supposed to follow the polls – that would make them politicians. Polls may be useful for scholars trying to decide, in retrospect, whether or not a particular decision was unilateralist. But judges deciding a case at any point in time should limit themselves to the conventional tools of constitutional interpretation in trying to discern the people’s constitutional views – namely constitutional text, history, and precedent, as well as the laws and declarations adopted by Congress, the President, and the states. For this reason, I hope that the vision of democratic constitutionalism I defend in the book might appeal to people of very different methodological commitments – from liberal and conservative originalists and pragmatists to common law constitutionalists. All you need to buy into the vision of the Most Democratic Branch is a commitment to bipartisan judicial restraint.

Thanks again for these provocative questions. Look forward to another round later this week.