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)
"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)