The Magazine

A View from the Bench

The unpersuasive case for judicial activism.

Dec 4, 2006, Vol. 12, No. 12 • By EDWARD WHELAN
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The Myth of

Judicial Activism

Making Sense of

Supreme Court Decisions

by Kermit Roosevelt III

Yale, 262 pp., $30

The term "judicial activism" carries a powerful stigma. Over the past four decades or so, the courts, especially the Supreme Court, have imposed the left's agenda on a broad range of issues--abortion, the death penalty, pornography, homosexuality, criminal rights, and a secularized public square, to name a few. Many critics of judicial decisions on these matters emphasize that the rulings are not merely erroneous, but operate to deprive Americans of their basic political right to establish, through their elected representatives, the policies that ought to govern the nation, their states, and their communities. The shorthand label "judicial activism" captures and conveys this unconstitutional judicial usurpation of the democratic process.

Contending that "judicial activism is an empty epithet," Kermit Roosevelt III, professor of law at the University of Pennsylvania, has written a book earnestly arguing that judicial decisions ought, instead, to be assessed against his proposed benchmark of "legitimacy." Although The Myth of Judicial Activism is, for the most part, evenhanded, that virtue cannot compensate for its deep conceptual flaws. Roosevelt fails to provide what his title and subtitle promise: He neither exposes judicial activism as a "myth" nor provides a useful alternative means of "making sense of Supreme Court decisions."

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