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

by Kermit Roosevelt III

• ISBN13: 9780300114683
• ISBN10: 0300114680
• Edition: 1st
• Format: Trade Book
• Copyright: 2006-10-02
• Publisher: Yale University Press

Summary

This carefully considered book is a welcome addition to the debate over "judicial activism." Constitutional scholar Kermit Roosevelt offers an elegantly simple way to resolve the heated discord between conservatives, who argue that the Constitution is immutable, and progressives, who insist that it is a living document that must be reinterpreted in new cultural contexts so that its meaning evolves. Roosevelt uses plain language and compelling examples to explain how the Constitution can be both a constant and an organic document. Recent years have witnessed an increasing drumbeat of complaints about judicial behavior, focusing particularly on Supreme Court decisions that critics charge are reflections of the Justices' political preferences rather than enforcement of the Constitution. The author takes a balanced look at these controversial decisions through a compelling new lens of constitutional interpretation. He clarifies the task of the Supreme Court in constitutional cases, then sets out a model to describe how the Court creates doctrine to implement the meaning of the Constitution. Finally, Roosevelt uses this model to show which decisions can be justified as legitimate and which cannot.

Author Biography

Kermit Roosevelt is assistant professor, University of Pennsylvania Law School, and author of the novel In the Shadow of the Law. He lives in Philadelphia.

Table of Contents

Acknowledgments	ix
Introduction: Judging the Court	1	(10)
Part I Deciding Constitutional Cases
ONE The Plain Meaning of the Constitution: The Fallacy of Direct Enforcement	11	(11)
TWO The Model: What Doctrine Is For	22	(15)
THREE From Activism to Legitimacy	37	(28)
Part II Easy Cases
FOUR Equal Protection, Criminal Procedure, Executive Detention	65	(26)
Part III Hard Cases
FIVE Gay Rights: Romer, Lawrence, and Goodridge	91	(20)
SIX Abortion: Roe and Casey	111	(22)
SEVEN Takings: Kelo v. City of New London	133	(7)
EIGHT The Establishment Clause	140	(11)
NINE The Death Penalty: Roper and Atkins	151	(10)
TEN The First Amendment: Campaign Finance Reform	161	(8)
Part IV Illegitimacy
ELEVEN Refusing to Defer	169	(33)
TWELVE Reviled Decisions	202	(27)
Part V Striking the Balance
THIRTEEN Branches Behaving Badly: Whom Do You Trust?	229	(8)
Notes	237	(10)
Index	247