Jeffrey Rosen argues in the New York Times Magazine that the Supreme Court, for good or ill, reflects public opinion better than elected officials do. I’ve been hearing this claim since high school. In the last several years, I’ve read it often in Rosen’s work. As smart as he is, his claim is not getting more persuasive with repetition.

Rosen notes that the public has higher esteem for the Court than for congressmen–which is a very different, and only indirectly related, claim. He asserts that the Court’s decisions on affirmative action, abortion, and gay rights reflect public opinion. But that claim gets what plausibility it has from Rosen’s tendentious description of the Court’s abortion decisions. Did the Court reflect public opinion when it struck down laws against partial-birth abortion? Rosen cites polls that support his thesis. But there are many polls that show majority disapproval of racial quotas in university admissions. As for gay rights: It may be that the national public believes that state governments should allow localities to protect gays from private-sector discrimination and that homosexual sexual conduct should be legal (even if the publics of Colorado and Texas, respectively, did not take those views). On the question of whether the Court ought to impose a national policy on these matters, I doubt there is a meaningful public opinion.

Rosen also benefits from misleading comparisons. Justice O’Connor is compared to the polarized congressional leadership of Harry Reid and Bill Frist. But wouldn’t the relevant comparison be between the Supreme Court’s swing justice and the Congress’s swing legislators? (Or between Reid and Frist on the one hand, and Scalia and Ginsburg on the other.) Finally, this business about congressional polarization, which Rosen all but calls the Court to do something about: Rosen passes over in silence the much-discussed possibility that the Court has had something to do with creating the problem in the first place.