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

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.)