Supreme Court as Centrist Bastion?

Jeffrey Rosen argues in Sunday's New York Times Magazine that "on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid." Through a series of decisions in the late 1990s, Rosen says, "in cases involving affirmative action, indirect government aid to religion, gay rights and abortion," the Supreme Court majority "seemed to split the difference between right and left", and has become " increasingly adept at representing the more accommodating center of American politics."

Interestingly, Rosen blames his findings - that "unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives"- on the nation's redistricting process. This was what caught my eye about the article, since redistricting reform is a much-discussed topic among centrist bloggers and activists lately. Because House races have become so uncompetitive through the "partisan gerrymandering" that passes for redrawing districts, Rosen says, "Democrats and Republicans in Congress no longer have an incentive to court the moderate center in general elections."

"This, in turn, has created parties that are more polarized than at any other point in the past 50 years. And since more than half of the current senators previously served as representatives, the radically partisan culture of the House is now contaminating the Senate," Rosen writes ominously. He doesn't add that the number of 'red-state Democrats' and 'blue-state Republicans' has been steadily decreasing in both the House and Senate in recent elections, serving to increase the level of partisan rancor still further. These elements are what has given Congress cover to take such actions as intervening in the Terri Schiavo case, a move that a large majority of the American public disagreed with (another example of agreement with the judiciary branch, Rosen notes).

Rosen offers a scenario in which "the president and Congress may try to push the courts toward the extreme right to please their base. If they succeed, the Supreme Court, over the long term, could become just as much in the thrall of ideological extremists as the White House and Congress. And then the views of a majority of the American public might not be represented by any of the three branches of the United States government - an alarming prospect for the world's leading democracy." Should this occur, "a provoked national majority may eventually try to throw [current officeholders] out. And if unable to do so because of gerrymandered districts, that majority may be mobilized to elect more moderate politicians by popular initiative ...".

Redistricting reform offers a different route, Rosen suggests, touting a recent Schwarzenegger plan to place California's redistricting process in the hands of a nonpartisan commission made up of retired judges rather than leaving it in the hands of elected (hence partisan) legislators. By increasing competition in political campaigns, Rosen assumes - I think correctly - that those elected would be more likely to represent the interests of the centrist majority rather than those on the extremist fringes. Through the same 'trickle-up' properties at play today, just reversed, this centrification process would carry over to the Senate as well.

"Maybe what's happened in California is the only way to empower the silent majority of Americans to take back their country," Rosen ends his column. Maybe Rosen's right.

This is not the last you'll hear from me or other centrists on this important issue. Because we ought not to have to rely on the Supreme Court as the last bastion of common-sense centrist principles.