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

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