The Myth of Judicial Activism

Making Sense of Supreme Court Decisions

Kermit Roosevelt III

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January 24, 2008
272 pages, 5 1/2 x 8 1/4
2 b/w illus.
ISBN: 9780300126914
Paper

Also Available in:
Cloth

Can the Constitution change with the times without forsaking the framers’ original intent?

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.

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

"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

"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)

"The Legal Theory Bookworm recommends The Myth of Judicial Activism."—Legal Theory Bookworm

"[A] clear, short, and very readable book. . . . The Myth of Judicial Activism has much to offer. It provides an introduction to controversial Supreme Court cases and the difficult and complex questions they pose. It also provides a framework for evaluating the legitimacy of judicial action, which promises to usefully shape public debate about constitutional law and help lawyers think about and construct legal arguments. Roosevelt accomplishes these goals while maintaining a fair, detached, and academic tone that belies the book's partisan-sounding title. And he does it simply, clearly, concisely."—Garrett Coyle and Julian Dayal, New York Law Journal

"A timely contribution to our public discourse."—Publishers Weekly

"Highly recommended. General readers, upper-division undergraduates through practitioners."—Choice

"Roosevelt's book successfully contributes to both academic knowledge and public understanding by establishing an objective method to assess whether judges have 'abused' their constitutional  mandate by imposing their individual personal prejudices and beliefs. . . . The book not only is timely but also is a joy to read. It contributes to a constructive public discourse and calls for informed and balanced consideration of the judiciary's contributions to society."—Annamarie A. Edelen, Wisconsin Lawyer

"The Myth of Judicial Activism is the most elegantly concise re-statement available of an important theory of constitutional interpretation that has won widespread academic support for the last 30 years. . . . The accessiblilty and intelligence of Roosevelt's exposition is reason enough to read his book, so that you can judge for yourself about one of the most important strands of contemporary constitutional scholarship."—Roderick M. Hills, Jr., Judicature

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