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

by Kermit Roosevelt III

• ISBN13: 9780300126914
• ISBN10: 0300126913
• Format: Trade Paper
• Copyright: 2008-01-24
• Publisher: Yale University Press

Summary

This carefully considered book is a welcome addition to the debate over "judicial activism." Constitutional scholar Kermit Roosevelt III 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 III is assistant professor, University of Pennsylvania Law School, and author of the novel In the Shadow of the Law.

Table of Contents

Acknowledgments	p. ix
Introduction: Judging the Court	p. 1
Deciding Constitutional Cases
The Plain Meaning of the Constitution: The Fallacy of Direct Enforcement	p. 11
The Model: What Doctrine Is For	p. 22
From Activism to Legitimacy	p. 37
Easy Cases
Equal Protection, Criminal Procedure, Executive Detention	p. 65
Hard Cases
Gay Rights: Romer, Lawrence, and Goodridge	p. 91
Abortion: Roe and Casey	p. 111
Takings: Kelo v. City of New London	p. 133
The Establishment Clause	p. 140
The Death Penalty: Roper and Atkins	p. 151
The First Amendment: Campaign Finance Reform	p. 161
Illegitimacy
Refusing to Defer	p. 169
Reviled Decisions	p. 202
Striking the Balance
Branches Behaving Badly: Whom Do You Trust?	p. 229
Notes	p. 237
Index	p. 247
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