The Most Democratic Branch

Looks at some of the most important Supreme Court cases in history and contends that the Supreme Court is most successful when it defers to the constitutional views of the American people.

A penetrating look at some of the most important Supreme Court cases in history, this book illustrates why the Supreme Court is most successful when it defers to the constitutional views of the American people.

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.

Congress is the first branch of government in the American system, write Thomas E. Mann and Norman J. Ornstein, but now it is a broken branch, damaged by partisan bickering and internal rancor. The Broken Branch offers both a brilliant diagnosis of the cause of Congressional decline and a much-needed blueprint for change, from two experts who understand politics and revere our institutions, but believe that Congress has become deeply dysfunctional. Mann and Ornstein, two of the nations most renowned and judicious scholars of government and politics, bring to light the historical roots of Congress's current maladies, examining 40 years of uninterrupted Democratic control of the House and the stunning midterm election victory of 1994 that propelled Republicans into the majority in both House and Senate. The byproduct of that long and grueling but ultimately successful Republican campaign, the authors reveal, was a weakened institution bitterly divided between the parties. They highlight the dramatic shift in Congress from a highly decentralized, committee-based institution into a much more regimented one in which party increasingly trumps committee. The resultant changes in the policy process--the demise of regular order, the decline of deliberation, and the weakening of our system of checks and balances--have all compromised the role of Congress in the American Constitutional system. Indeed, Speaker Dennis Hastert has unabashedly stated that his primary responsibility is to pass the president's legislative program--identifying himself more as a lieutenant of the president than a steward of the house. From tax cuts to the war against Saddam Hussein to a Medicare prescription drug benefit, the legislative process has been bent to serve immediate presidential interests and have often resulted in poorly crafted and stealthily passed laws. Strong majority leadership in Congress, the authors conclude, led not to a vigorous exertion of congressional authority but to a general passivity in the face of executive power. A vivid portrait of an institution that has fallen far from the aspirations of our Founding Fathers, The Broken Branch highlights the costs of a malfunctioning Congress to national policymaking, and outlines what must be done to repair the damage.

A reader to accompany Ginsberg and Wagner Hill's Congress: The First Branch This reader offers an examination of such topics as congressional elections, the internal structure of Congress, the legislative process, Congress and the president, and Congress and the courts. It is designed to accompany the course text Congress: The First Branch, which introduces Congress as America’s most democratic institution. Based more on the history of the branch than on its modern applications, this volume is essential for students utilizing the main text and studying Congress at large.

"This work is submitted to the public with an uncommon degree of solicitude and anxiety. The subject it embraces, and the objects it has in view, are of inexpressible magnitude. The former is the present critical situation of the United States, with the causes that have led to that situation ; the latter, the mitigation of party rage and rancour, and the restoration of harmony. It is no longer doubtful that a conspiracy exists in New England, among a few of the most wealthy and influential citizens, to effect a dissolution of the union, at every hazard, and to form a separate confederacy. This has been believed by some of our citizens for years, and strenuously denied by others, deceived by the mask the conspirators wore, and by their hollow professions. But it requres more than Boeotian stupidity and dulness, to hesitate on the subject, after the late extraordinary proceedings, which cannot possibly have any other object."--Preface to the first edition, Philadelphia, Nov. 8, 1814.

Amongst the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a certain tenor to the laws; by imparting new maxims to the governing powers, and peculiar habits to the governed. I speedily perceived that the influence of this fact extends far beyond the political character and the laws of the country, and that it has no less empire over civil society than over the Government; it creates opinions, engenders sentiments, suggests the ordinary practices of life, and modifies whatever it does not produce. The more I advanced in the study of American society, the more I perceived that the equality of conditions is the fundamental fact from which all others seem to be derived, and the central point at which all my observations constantly terminated. I then turned my thoughts to our own hemisphere, where I imagined that I discerned something analogous to the spectacle which the New World presented to me. I observed that the equality of conditions is daily progressing towards those extreme limits which it seems to have reached in the United States, and that the democracy which governs the American communities appears to be rapidly rising into power in Europe. I hence conceived the idea of the book which is now before the reader. It is evident to all alike that a great democratic revolution is going on amongst us; but there are two opinions as to its nature and consequences. To some it appears to be a novel accident, which as such may still be checked; to others it seems irresistible, because it is the most uniform, the most ancient, and the most permanent tendency which is to be found in history. Let us recollect the situation of France seven hundred years ago, when the territory was divided amongst a small number of families, who were the owners of the soil and the rulers of the inhabitants; the right of governing descended with the family inheritance from generation to generation; force was the only means by which man could act on man, and landed property was the sole source of power. Soon, however, the political power of the clergy was founded, and began to exert itself: the clergy opened its ranks to all classes, to the poor and the rich, the villein and the lord; equality penetrated into the Government through the Church, and the being who as a serf must have vegetated in perpetual bondage took his place as a priest in the midst of nobles, and not infrequently above the heads of kings. The different relations of men became more complicated and more numerous as society gradually became more stable and more civilized. Thence the want of civil laws was felt; and the order of legal functionaries soon rose from the obscurity of the tribunals and their dusty chambers, to appear at the court of the monarch, by the side of the feudal barons in their ermine and their mail. Whilst the kings were ruining themselves by their great enterprises, and the nobles exhausting their resources by private wars, the lower orders were enriching themselves by commerce. The influence of money began to be perceptible in State affairs. The transactions of business opened a new road to power, and the financier rose to a station of political influence in which he was at once flattered and despised. Gradually the spread of mental acquirements, and the increasing taste for literature and art, opened chances of success to talent; science became a means of government, intelligence led to social power, and the man of letters took a part in the affairs of the State. The value attached to the privileges of birth decreased in the exact proportion in which new paths were struck out to advancement. In the eleventh century nobility was beyond all price; in the thirteenth it might be purchased; it was conferred for the first time in 1270; and equality was thus introduced into the Government by the aristocracy itself.

A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts.

The former legal affairs editor of Newsweek takes us inside the secret world of the Supreme Court and shows how the justices subvert the role of the other branches of government—and how we’ve come to accept it at our peril. Never before has the Court been more central in American life. It is now the nine justices who too often decide the biggest issues of our time—from abortion and same-sex marriage to gun control, campaign finance, and voting rights. The Court is so crucial that many voters in 2016 made their choice based on whom they thought their presidential candidate would name to the Court. Donald Trump picked Neil Gorsuch—the key decision of his new administration. The newest justice, Brett Kavanaugh—replacing Anthony Kennedy—is even more important, holding the swing vote over so much social policy. With the 2020 campaign underway, and with two justices in their ’80s, the Court looms even larger. Is that really how democracy is supposed to work? Based on exclusive interviews with the justices, Kaplan provides fresh details about life behind the scenes at the Court: the reaction to Kavanaugh’s controversial arrival, the new role for Chief Justice John Roberts, Clarence Thomas's simmering rage, Antonin Scalia's death, Ruth Bader Ginsburg's celebrity, Breyer Bingo, and the petty feuding between Gorsuch and the chief justice. Kaplan offers a sweeping narrative of the justices’ aggrandizement of power over the decades—from Roe v. Wade to Bush v. Gore to Citizens United. (He also faults the Court for not getting involved when it should—for example, to limit partisan gerrymandering.) But the arrogance of the Court isn't partisan: Conservative and liberal justices alike are guilty of overreach. Challenging conventional wisdom about the Court's transcendent power, as well as presenting an intimate inside look at the Court, The Most Dangerous Branch is sure to rile both sides of the political aisle.

This book explains why Congress is the indispensable institution for safeguarding popular, democratic, and constitutional government. Even though its record over the past two centuries presents a mixed picture, the record of the other two branches is also decidedly mixed. The author has worked for Congress for the past four decades and writes from a perspective that intimately understands its shortcomings while appreciating its strengths. He contends that portraying Congress as so inherently inept that it must be kept subordinate to presidential or judicial power is misguided and uninformed. The Constitution looks to Congress as the first branch because it is the institution through which citizens at the local and state level engage in self-government. Although Presidents claim to be the national representative, they cannot substitute for the knowledge and legitimacy brought by members of Congress. Congress, after all, is the people's branch and this book restores it to its rightful claim.