Customer Reviews

The Myth of Judicial Activism: Making Sense of Supreme Court Decisions

5 star:		(2)
4 star:		(1)
3 star:		(1)
2 star:		(0)
1 star:		(3)

 

 

The author, an assistant professor of law at Penn, and the author of a solid novel about Washington law firm life ("In the Shadow of the Law" reviewed also on Amazon), tackles in this book one of the most difficult and important issues relating to the Supreme Court--its legitimacy to make decisions overruling the popularly-elected branches. Courts recently have been under fire by a number of groups, with much more emotion and passion than light and insight in evidence. The author wants to develop a different approach in assessing charges of alleged "judicial activism." While his approach is unique, I think only time will tell whether he has crafted a workable approach to the issue. Basically, the author argues that most Court decisions are "legitimate" because they represent "reasonable" decisions as to whether judicial deference is advisable. He draws a basic distinction between "constitutional meaning" and "constitutional doctrine" (i.e., rules the Court employs to implement constitutional meaning). He focuses upon doctrine, at once then avoiding the endless debate about "plain meaning." One important consideration in formulating doctrine is institutional competence, which is a key point in his analysis, as is the role of past history. A careful examination of the "activism" allegations is included--here the author argues that it is not meaning, but doctrine, that is the key issue. He also adds some solid perspective on the originalism debate.

Having laid out his general theory, the author next looks at a series of Court decisions, some quite controversial,which he designates as "easy cases" and "hard cases" to demonstrate the applicability of his model. This is followed by a very valuable discussion of "legitimacy," which he defines as sensible attempts to implement a reasonable understanding of constitutional meaning. This section discusses more cases. Finally, in a section called "Striking the Balance," the author sums up his approach in a sort of "whom do you trust" approach re deciding constitutional issues--courts or the other branches.

The book includes excellent notes and helpful sections on "further reading" at the end of each chapter. As with most innovative studies, there are a few problems. It is not always quite clear, without substantial review, as to what the author is suggesting in the initial section where his approach is laid out. How does one define "reasonable" and "sensible" for example? While written for the general reader, this is not light "bedtime reading." Nonetheless, Roosevelt is grappling with difficult issues and proposing his own innovative model to address a very critical issue. For those interested in this vital issue, a book well worth the challenges involved in reading it.

Normally, I don't write reviews on Amazon.com or anywhere else for that matter but I cannot help doing so when some of the reviews posted here are anything but charitable, oversimplify what judges do and must do in hard constitutional cases, and refuse to engage the arguments of the author. This is a book worth reading, and it is hardly a mere apologia for so-called liberal judicial activism. As I see it, if anything, Roosevelt's position leads to too much deference on the part of courts to legislative majorities. I would encourage those who are interested in what a smart law professor has to say about judicial review and the resolution of certain constitutional controversies to buy this book and read it cover-to-cover, above all, with an open mind.

"The Myth of Judicial Activism" is an entry level work in Constitutional law that seeks to be, as the author admits, a popular refutation of Mark Levin's "Men in Black." The book is not written for lawyers or law students, and Roosevelt points readers to more detailed discussions of his topics in the "further reading" sections that follow each chapter. The book should be accessible to most readers with general familiarity of the Supreme Court and the Constitution.

Roosevelt makes the convincing argument that the term "judicial activism" is an empty phrase that is in practice only used to criticize particular decisions or judges with which an individual does not agree, rather than describe a coherent and consistent judicial philosophy or pattern of decision making. In its place, Roosevelt seeks to create a model for determining judicial legitimacy based on reference to five factors (historical lessons, institutional competence of competing branches, costs of error, defects in democracy, and relative benefit of rules v. standards). The starting point for Roosevelt's analysis is that the Constitution does not have a plain meaning and therefore the Court must create doctrine (judge made rules for deciding cases) in order to give vague phrases real meaning. This position has its critics, and Roosevelt addresses originalism in a quick, if not wholly convincing section. Roosevelt separates application originalism from meaning originalism in order to strike a more centrist stance on how the Constitution can be interpreted.

After setting out his model in the first half of the book, Roosevelt devotes the second half to comparing Court outcomes to his model. There is little controversy in the first few chapters, but the book becomes more partisan when cases like Kelo, Bush v. Gore, Lopez, and Morrison are discussed. The Kelo analysis is somewhat strange in that the takings clause is largely ignored, even though defining "public use" was at the center of Stevens' opinion. Roosevelt criticizes conservative commerce clause results in Lopez and Morrison, but he never mentions Wickard v. Filburn which is curious at best. His explanation for why the Court overruled Congress in Dickerson is also weak.

All in all, people should read this book because it is a good introduction to how the Supreme Court makes or ought to make decisions, but this should not be the ONLY book that someone reads on the subject. Those who are already well read in the area will likely not enjoy this book, and will probably consider it watered down John Hart Ely and Ronald Dworkin.

"The Myth of Judicial Activism" is an elegant primer on Constitutional jurisprudence. It uses a handful of simple concepts -- institutional competence, meaning versus doctrine, meaning originalism versus application originalism, levels of scrutiny, etc. -- to guide the reader through some famous and not-so-famous Supreme Court cases, showing how and why the Court crafts doctrine to implement Constitutional meaning. The exposition is crystal clear, and, by the end of the book, a framework for adjudication is assembled that is true to the Constitution yet cognizant of social change.

Here and there, originalists a la Scalia take their lumps, so conservative readers might be miffed. However, others will get a first-rate lesson in how to think about the interpretation and application of a constitution in a democracy. Amazon readers should ignore the right-wingers who dump on "The Myth of Judicial Activism" in other reviews. It's not clear to me whether these reviewers even read the book. In any event, they manage to ignore one key fact: the author believes that courts should generally defer to legislatures and the executive branch. He is hardly a judicial activist.

The author clerked under US District Judge Stephen Williams and Supreme Court Justice David Souter and now teaches at the U. of Pennsylvania Law School. The thought process of Justice Souter clearly prevails here. If the author believed his own argument, he would differ as to whether certain cases were properly decided or not. Instead, the author seems to conclude that cases are properly decided if the outcomes accord with current politically liberal fashions.

This volume would be valuable to anyone who does not already understand how legal words and judicial concepts can be twisted to achieve whatever endpoint at which a judge wants to arrive. One suspects, though, that rather than trying to add to the public's understanding of judicial decision-making, the real intent of the author is to take another step in hopefully gaining appointment as a federal judge once a Democrat is elected President.

This is hardly a serious analysis of the issue but smacks more of a liberal's partisan defense of the charge of judicial activism - it reads more like an oversized editorial than a scholarly work.

This mess of a book contains every possible justification and rationalization for judges substituting their own policy preferences for the text and clear meaning of the constitution. At its bottom, it is a profoundly anti-democratic tract. Mr. Roosevelt believes that the ultimate political authority in the country should be held by a wise cadre of elites in black robes. Wouldn't do to have the unwashed getting their hands on the levers of power in an honest democracy operated by the rules actually set down by the founders in the constitution.