I would add to Mark’s posts one more thing which shows that Rosen does not understand (a) Mark’s book, (b) what conservatives want from the judiciary, and (c) democracy.

Rosen quotes Mark: “According to Levin, ‘de facto judicial tyranny’ today ‘frustrates and disenfranchises the American people and thwarts representative government.’”

Rosen then describes Tushnet’s argument, which he misleadingly says puts the lie to Mark’s point about disenfranchisement: “the Rehnquist court has actually supported the views of a narrow majority of the American people, rather than thwarting them, in all the most controversial cases of the culture wars, involving affirmative action, gay rights and access to early-term abortions.”

Here’s the problem with Rosen’s argument: What Mark is talking about is democratic government, where the people exercise self-determinism through their elected representatives — not their unelected judges. Free people living in a democratic system do not want or need the courts to support their views. They can effectuate their views at the ballot box.

Even taking Tushnet at face value (and for the reasons Mark details, it would be a mistake to take him at face value) his argument would not disprove that the the courts are disenfranchising the American people and thwarting representative government. At best, Tushnet’s claims suggest that the courts have tyrannically imposed trendy pieties which, according to Tushnet, are shared by slight majorities of the American people. Even if that were true, that’s not democracy. The people are still disenfranchised and their elected representatives are still dictated to by the courts. In fact, the term for what Tushnet and Rosen are arguing in favor of is “benevolent tyranny” — which is sure to become malevolent tyranny long before it ever becomes democracy.