What color is the sky in your world? This is a question increasingly worth asking of Jeffrey Rosen, whose work I've admired over the years in the New Republic, but whose latest efforts show less and less of the independent thinker and more and more of the conventional media liberal. [UPDATE: Will Baude, over at Crescat
that Rosen has taken an unconventional view on Roe
over the years. It is true that at TNR he has suggested
that if Roe
were overturned, comity might return to the judiciary; it is also true that he has criticized Roe
on the merits. This is the independence I had in mind, and what I find lacking in pieces like the one I discuss here.] Randy Barnett and the Volokh gang have done a nice job of debunking
his recent effort (a longer version of an earlier argument he had ventured in TNR) to keep the dubious "Constitution in Exile" meme alive in the NYTimes Magazine.
This week, in the New Republic (sorry, I think you need a subscription to access the story), Rosen offers further glimpses
of his worldview, in a way that is illuminating. The piece fits comfortably into the general "sky is falling" narrative that has possessed Upper West Side folks, the Times Op Ed Page, Andrew Sullivan, and diverse others since the last election. Here the subtitle is "GOP v. Judiciary." How original. It's sort of sad that even with the chance to reflect on his wisdom upon his passing, so few liberals realize that Lloyd Cutler was righ
t about the damage that Democrats would do to the judicial nomination process (and arguably the judiciary itself) when they shamefully pretended that Robert Bork was against civil rights, dishwashers, breathing, and other assorted goods. How far they have come now to assert that Janice Rogers Brown does not appreciate the plight of minorities--perhaps some time with White Senate Millionaire Harry Reid would help her to glean those insights she missed in her youth.
But back to Rosen. Let's just sample some of his argument, the heart of which appears to be that the GOP invented the filibuster and destroyed our Constitutional order:
But far more significant than these political flip-flops is the fact that the House and Senate are no longer reliable representatives of most Americans' constitutional views. This is a dramatic and important shift. For most of U.S. history, all of the great constitutional issues--from the meaning of free speech to the meaning of equality--were debated in the House and Senate, which reflected the views of democratic majorities more precisely than the president or the courts. But, as political scientists Jacob Hacker and Paul Pierson argue in their forthcoming book, Off Center: George W. Bush, Tax Cuts, and the Erosion of Democracy, recent changes have made Congress an unreliable representative of majority will. Now that incumbents, thanks to partisan gerrymandering, are virtually assured reelection, politicians have a strong incentive to pander to their most reliable supporters--including partisan activists and high-stakes donors--in order to avoid the primary challenges that now decide elections. This means that representatives and senators can increasingly ignore the preferences of the moderate majority without suffering electoral consequences.
Gosh, when I learned about gerrymandering in 8th grade history way back in the 80s, when Democrats ran the Congress, my teacher was so prescient! How could he know that some day way in the future, Republicans would invent a way to keep incumbents in office...but, wait, I know Gerrymandering has a more venerable history than that...Surely Rosen can't expect anyone to take this seriously.
But of course it gets worse. We learn early in the article that "Polls show that more than two-thirds of Americans oppose eliminating the filibuster." (I presume he's quoting the absurd WaPo poll which asked people whether they favored "changing the rules so Republicans can more easily confirm Pres. Bush's nominees"--no leading question there.) We also learn that 2/3 of people polled didn't like the Schiavo intervention. But then we also learn: "if Congress no longer accurately represents the constitutional views of the majority, the Court will have alarmingly little evidence of what those views are, aside from fickle public opinion polls." The incoherence of this piece is somewhat dizzying. Of course, even though courts are not good at determining public opinion, courts turn out to be good at determining public opinion:
Fortunately, the canniness of the courts in following public opinion suggests that Republican attacks on judicial independence are unlikely to succeed...history suggests that the Court tended to retreat in the face of congressional opposition only when it was genuinely out of step with public opinion. That is not the case today. If the historical pattern holds, the courts are unlikely to wilt before congressional proposals to strip them of jurisdiction over controversial cases...As long as judges are confident that a majority of the country is behind them, they will remain steadfast in the face of congressional bullying.
Let's clear some of its errors away: Gerrymandering, while a problem and something I oppose, is centuries old. There is little reason to believe that it is worse now than during the 40-odd years of uninterrupted Democrat rule in the House; but infinite rule by Democrats wouldn't seem odd to some. Further, while Clinton nominees Steve Breyer and Ruth Bader Ginsburg sailed through the GOP-controlled Senate, Democrats now claim that a black woman from the South does not understand the plight of minorities. Does anyone think they would vote unanimously for Scalia today, though they did when he took the court? Scalia has not changed, the Democrat party has changed, in that it has adopted an utterly politicized view of the judiciary. Are Chuck Schumer and Ted Kennedy really more representative of "mainstream views" than President Bush? Care to run that in an election? (Contrast Schumer's approach to selecting judges with Lloyd Cutler's here.)
But worse than the sloppy history and incoherent political analysis is the similarly indefensible presumption that most of the country agrees with Jeff Rosen and Sandra Day O'Connor on the issues of the day:
Unlike the Republican base, however, a majority of the American people agree with the Supreme Court on most important issues. In the 1980s and 1990s, as conservatives passed tax cuts and scaled back the size of government, the Court modestly followed their lead, striking down laws on the margins of the post-New Deal regulatory state, such as the Gun-Free School Zones Act of 1990. And, as the public sided with liberals in the culture wars--endorsing gay rights, affirmative action, and access to early-term abortions--so did the Court.
Presumably fickle polling establishes the central basis of Rosen's claims. Unlike the fickle poll we had last November, where one candidate, campaigning on his record of judicial appointments and his ongoing promise to appoint more Scalias and Thomases to the Supremes, won a clear majority. Oh, and nevermind that the court has done much more than endorse "early-term abortions," that there is scant evidence that the public has robustly endorsed gay rights (let alone the logic of Lawrence, which imagines that founders embraced them, too), and mixed evidence of public support for affirmative action (even if you believe in polls, as Rosen does not).
So, to sum up, in Rosen's world, the following things are all true, all at once: The Supreme Court should not try to follow public opinion, because it is not equipped to; historically, the Supreme Court has done a nice job of following public opinion; Gerrymandering is a new phenomenon that newly threatens the country; the court was following public opinion in Roe and its progeny, not leading; and Janice Rogers Brown is a "radical." What color is that sky again?
Continue Reading "Rosen Colored Glasses..." . . .