aTypical Joe: a gay New Yorker living in the rural South

Monday, July 24, 2006

It’s the interplay

So, not long ago I was the cliché liberal writing that the courts protect minorities. I gather that was the mainstream liberal thinking at the time. The vogue among liberals now is to say courts should do nothing. From Dahlia Lithwick’s review of Jeffrey Rosen’s The Most Democratic Branch:

Rosen rejects the “romantic myth” of “antidemocratic courts protecting vulnerable minorities against tyrannical majorities.” He contends that “the least effective decisions have been those in which courts unilaterally try to strike down laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people.” And then he urges that if the courts want to maintain “democratic legitimacy” they must become safe, cautious; forever lagging one step behind Congress and the public-opinion polls.

There are two problems with this prescription: The first is practical and the second is normative. As a pragmatic matter, Rosen is never terribly clear as to how the courts are meant to divine public readiness for big constitutional change. He claims that “polls are hardly a reliable indicator,” and concedes, as he must, that “judges are not supposed to follow the polls.” Yet as he works through case after case, classing decisions as either constitutional successes or reckless overreaching, his predominant support lies in the contemporaneous polls he cites.

More troubling, he claims that the nation was ready for the dramatic constitutional shift in Brown v. Board because “over half the country” supported it, whereas the court’s decision in Roe v. Wade was an affront because 52 percent of the country supported it. To be sure, Rosen can slice and dice that data to suggest that the country wasn’t really ready for Roe, even though the polls suggested it might have been. And it isn’t inconsequential that the court had the support (admittedly grudging) of the executive branch in handing down Brown. But as Rosen himself proves, by futzing with these equivocal numbers, it’s not possible to know with any certainty what the country is ready for-particularly when the polls show the public to be about evenly divided on some constitutional question.

Me, I’ve taken to saying that the beauty of the three branches is in the interaction among them; I don’t think it matters whether it’s the courts or the executive or the legislature. It’s the jockeying for place and power among them that engages us, makes us think, and moves us forward. That imterplay is our process of reconciliation and progress.