Courting the center.

The Most Democratic Branch: How the Courts Serve America, by Jeffrey Rosen (Oxford, 256 pp., $25)

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IT ought to be axiomatic in publishing: Do not give a book a title that makes a claim the author doesn't really attempt to prove. Not all book titles make claims, bold or otherwise. But, to take a bestseller of recent years, imagine if one opened Thomas Cahill's How the Irish Saved Civilization only to discover that it wasn't really about the Irish or about civilization. Just the same reaction awaits the reader of The Most Democratic Branch, in which Jeffrey Rosen appears to forget, after about page 4, that his title argues that the judiciary is, well, the most democratic branch of our government. Halfway through his introduction we find him recommending that the judiciary "defer to the constitutional views of Congress," and the title's claim is never heard again.

On the other hand, it is a kind of good news that the book doesn't really argue that the judiciary is the most democratic branch, since such a thesis is unsustainable on its face. Rosen's real argument, much more modest, comes in two parts. The first is that "the courts cannot ... thwart the will of national majorities for long." That is a plausible historical argument, with a good deal going for it. First we have to define "thwart," "will of national majorities," and "long," and use these terms consistently, but as an account of the Supreme Court's history (and that's the focus here, not courts in general), this might work.

The second part of Rosen's argument is not historical but prescriptive: that the Court does well by itself and the country, and can continue to do so, when it avoids "judicial unilateralism" and instead abides by whatever is the "social consensus" on the constitutional questions that come before it. If such questions are still in a state of flux or uncertainty, still being "actively and intensely contested" in the political arena, Rosen says, the justices should practice "judicial restraint," refusing to interfere with the policy choices made by Congress, the executive, or the states--or, perhaps, interfering only at the margins, with "gentle nudges rather than dramatic shoves." To do more is to invite "backlash," to endanger judicial independence, and to risk harm to "the causes" the justices "care most about."

"Judicial restraint" sounds terribly attractive to anyone alive to what the Court has been doing to American law and politics for a very long time. And Rosen certainly claims the high ground of moderation here, pouring scorn upon the advocates of judicial activism on both the left and the right. Yet there is something oddly Machiavellian about this book, as though Rosen were a political consultant writing a memo to a client about how to navigate the dangerous shoals of opinion-poll-based political life--as though he were Dick Morris to Anthony Kennedy's Bill Clinton. For in truth Rosen does not want a less powerful Supreme Court. He wants a cannier, more politically astute, and therefore more powerful Supreme Court, accomplishing a liberal agenda by small increments.

The cynicism is breathtaking precisely because it is so breezy and unselfconscious. I can hardly think of another book by a legal academic that evinced less interest in the meaning of the law. Rosen torches the straw man who is "confident that there is a single correct methodology that will produce the right answer to all constitutional questions," but it is he who is blithely confident that the right answer is that there are no right answers: The law is the plaything of politics, and the meaning of the Constitution is radically up for grabs.

Or so at least one is entitled to conclude from reading Rosen's treatment of a few dozen cases, after none of which can one tell whether Rosen thinks it was rightly decided. Marbury v. Madison? Its "constitutional conclusion may have been open to question." Dred Scott? The question in the case "was intensely contested in Congress." Lochner? "The problem" with the decision "was not that it applied the wrong constitutional principle." Plessy v. Ferguson? It was "arguably wrong," but then again maybe not. Brown v. Board of Education? The case was fraught with "constitutional ambiguity." Roe v. Wade? Its privacy principle was "not completely implausible."

Of legal judgments Rosen has none that are not tentative and provisional. Of political judgments he has plenty, all of them imbued with an air of certainty. In chapters ranging through history from the era of John Marshall to the present, and across numerous conventional "con law" topics, Rosen offers self-assured assessments of the extent to which the Court has behaved "unilaterally" or more humbly, praising where the Court moved wisely in his opinion, and blaming where it moved foolishly.

So, in an unintentional parody of a century of bad Marshall scholarship, Rosen tells us that in Marbury the great chief justice moved "deftly," with "cunning," and "confounded his political enemies" by "pulling out of his hat" a solution to a looming institutional danger to the judiciary, accomplishing "judicial statesmanship of the shrewdest kind" by means of "a judicial arabesque--or perhaps an act of jujitsu." This sort of praise--and it really is meant as praise--has been lavished on Marshall for decades, without a scrap of evidence to suggest that he had any objective in mind other than to decide the case--and every case he faced--as the law spoke to him. It makes a good story, but it is only a story.

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Rosen repeatedly shifts his standard for judging whether the Court is acting in a "unilateral" way. Should the justices follow public-opinion polls? Sometimes Rosen praises them for doing so--or for anticipating the polls accurately. But polls "are hardly a reliable indicator," he tells us, and in any case "the Court should defer to the national majority's constitutional views, not its political views." But Rosen tells us practically nothing--just a few wan gestures here and there--about how to tell the difference between the two. And he can't seem to decide whether judicial unilateralism always has ill effects, or whether we couldn't use just a little more in the way of "judicial heroics" from time to time.

Even in the absence of these difficulties in Rosen's argument, there is the problem of an unfalsifiable history. When a judicial decision is followed by supportive poll numbers, or by the absence of a backlash on Capitol Hill, Rosen takes such reactions as evidence of the Court's savvy reading of constitutional politics. But when public or congressional opinion is positive or tolerant in the aftermath of a ruling, it could be a sign of respect for the Court's presumed expertise or its arguments, or merely an indication of the public's sloth or indifference (or, in the case of Congress, of habitual risk-avoidance). When the Court and the public are in alignment, which is the actor and which the acted-upon? Rosen cannot say that an indistinguishable reaction would not have followed the opposite outcome in any given case. It is quite certain that the justices will never know whether following his vague advice will do them good or harm: That's a sure sign of counsel that is good both always and never, on the order of "look before you leap."

Rosen seems eager to burnish his credentials as a brave and determined centrist on the issues that roil constitutional politics. He takes the obligatory swipe at Bush v. Gore, which will please his friends on the left. And he sidles up to saying, but doesn't quite say, that Roe v. Wade should be overturned, which will alarm those same friends. But his pose of evenhandedness undoes him in his final chapter, where he contrasts the competing schools of originalism and pragmatism, both of which he eschews as failures. It becomes clear in Rosen's account--though he fails to see that this conclusion follows--that the failure of pragmatism as a limitation on judicial power is owing to flaws in the approach itself, while the failure of originalism is owing to the inconstancy of judges who do not follow the approach faithfully.

This is a distinction that makes a lot of difference--and it ought to tell our author something: Faithful devotion to the project of getting right with the Constitution is the surest way for the Supreme Court to serve itself, the country, and--this is the aim Jeffrey Rosen has willed himself to forget--the integrity of the Constitution and laws of the United States.

Mr. Franck is chairman of the political-science department at Radford University in Radford, Va., and a regular contributor to NRO's "Bench Memos" blog on the courts.