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The Myth of Judicial Activism: Making Sense of Supreme Court Decisions Hardcover – October 2, 2006

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Editorial Reviews

From Publishers Weekly

Roosevelt, an assistant professor at the University of Pennsylvania Law School, defends the Supreme Court against right-wing charges of undue judicial activism. Roosevelt sees the "activist" label as code for political disagreement with the outcomes of cases. A more productive approach, he suggests, would be to examine decisions for what he terms "legitimacy." Roosevelt's theory rests on distinguishing the meaning of a constitutional provision from the doctrine the Supreme Court uses to implement that meaning. The nomenclature seems unnecessarily abstruse, but the author clarifies his argument by surveying the Court's rulings on diverse issues, including the death penalty, abortion and freedom of speech. In most instances, Roosevelt finds the Court's decisions as at least minimally legitimate (that is, within the range of constitutional interpretation that reasonable judges could adopt) even though he disagrees with some of them. This willingness to recognize the good faith of outcomes he disapproves of is a winning characteristic of this book. The author's tolerant approach is matched by the composure of his writing style. If Roosevelt (who wrote the novel In the Shadow of the Law) is right that "excessive vilification" of the Supreme Court is dangerous to democracy, then his call for principled analysis rather than partisan name-calling is a timely contribution to our public discourse. (Oct.)
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"Kermit Roosevelt has written a remarkably accessible, conversational book that sets out with admirable clarity what constitutes (and what is not) 'judicial activism' and how we can accept as 'legitimate' decisions with which we disagree. One can only hope that it gets the wide readership it deserves."—Sanford Levinson, author of Our Undemocratic Constitution:  Where the Constitution Goes Wrong (and How We the People Can Correct It)
(Sanford Levinson)

"A graceful and compelling account of constitutional decision-making. Roosevelt shows how judges shape workable legal rules from constitutional meanings when reasonable minds can and do disagree. As learned as it is accessible, this book is a welcome antidote to today's overheated constitutional rhetoric."—Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
(Jack M. Balkin)

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Product Details

  • Hardcover: 272 pages
  • Publisher: Yale University Press; 1 edition (October 2, 2006)
  • Language: English
  • ISBN-10: 0300114680
  • ISBN-13: 978-0300114683
  • Product Dimensions: 8.4 x 5.8 x 0.8 inches
  • Shipping Weight: 14.4 ounces
  • Average Customer Review: 3.3 out of 5 stars  See all reviews (10 customer reviews)
  • Amazon Best Sellers Rank: #1,786,040 in Books (See Top 100 in Books)

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18 of 20 people found the following review helpful By theottersden on September 18, 2008
Format: Paperback Verified Purchase
Normally, I don't write reviews on 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.
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10 of 10 people found the following review helpful By Samuel J. Sharp on June 3, 2010
Format: Paperback
"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.
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31 of 37 people found the following review helpful By Ronald H. Clark VINE VOICE on December 14, 2006
Format: Hardcover
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.
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7 of 9 people found the following review helpful By not me VINE VOICE on February 3, 2010
Format: Paperback Verified Purchase
"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.
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