Reading and Discussing Kermit Roosevelt's The Myth of Judicial Activism:
Making Sense of Supreme Court Decisions (Yale University Press, 2006)
Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito
Anthony Kennedy, John Paul Stevens, John G. Roberts, Jr., Antonin Scalia, David H. Souter
This guide is intended to help you read Roosevelt's book and to suggest questions to pursue during our small group discussions. There are no exams and no grades, so have fun. Dig as deeply as you like. Stretch your mind and enjoy grappling with significant issues that are important for informed participation in today's public affairs.
- How important is it for you to be able to accept or reject charges and counter-charges about the institutions and policies of your government? What criteria do you employ? Do you use the same criteria for the President and Congress that you use for the courts? Roosevelt's objective is to help citizens understand and evaluate the work of the Supreme Court which, he believes, "is crucial to the health of our constitutional democracy"(6). His goal is to offer some guidelines that will be "illuminating and useful" to non-lawyer (4) in deciding "whether a particular judicial decision is legitimate" (37). Our discussion seeks to determine whether he meets his goal.
- His approach is to distinguish between the common sense meaning of the U.S. Constitution and the "doctrines" that justices use to apply that meaning in specific disputes (3). "[D]octrine is what decides cases," he writes (42). It "primarily reflects the Court's decision to defer, or not to defer to another governmental actor" (43). We need to decide whether this notion of doctrine is helpful in evaluating the legitimacy of Court decisions?
- Since all government officials are limited to exercising those powers given to them by the people or reserved to them through the U.S. Constitution, should it be the Court's responsibility to exercise judicial review and make sure other officials do not exceed that authority? How much deference should the Court give to the actions of other governmental officials (the President, Congress, governors, state legislatures, city councils, school boards, etc.) (5)?
- Do you believe the current level of popular hostility toward the Supreme Court is warranted? Has the Court become too powerful?
Chapter 1, The Plain Meaning of the Constitution: The Fallacy of Direct Enforcement
- Have activist judges substituted their own political preferences for the mandates of the Constitution, have they made rather than interpreted the law (12)? Or is "activism" largely a partisan talking point (15)? Do you agree or disagree with the author that the word "activism" has "no place in serious discussion" (15)?
- As the nation's fundamental law, the Constitution is general rather than specific like a statute. It is intended to endure, so its language is often general and even vague, making "direct enforcement" practically impossible without some judge-made doctrine (17-18). Do you agree or disagree with Justice Oliver Wendell Holmes when he wrote that general propositions do not decide concrete cases (18)?
- If doctrine is necessary, what makes it legitimate? How can citizens "distinguish between rules that are justifiable . . . and those that distort the Constitution" (20)?
Chapter 2, The Model: What Doctrine is For
- How can a high degree of deference by the Court to the actions of other governmental bodies, or what is called a low level of scrutiny using the rational basis doctrine, underenforce the Equal Protection Clause (25-26).
- What is heightened scrutiny, an anti-deferential doctrine, that overenforces the Constitution, and when, if ever, should it be used (27-28)?
- What should one consider in assessing the costs of an error by the Court? For example, do you believe it is better to let 100 guilty persons go free rather than convict one innocent person?
- Should doctrine be a "bright line," clear rule or a flexible standard (30-31)? What are the advantages and disadvantages of each?
- When, if ever, is intermediate scrutiny justified (33)? When, if ever, is strict scrutiny justified (34)? How does the "lessons of history" factor affect your answer?
Chapter 3, From Activism to Legitimacy
- Do you agree or disagree with the author's definition of legitimate and illegitimate decisions (37)? What does the author mean by saying that one might agree with an illegitimate decision and disagree with a legitimate decision?
- Is the author persuasive in reaching the conclusion that "judicial activism" merely means a decision inconsistent with the speaker's policy preferences (38-39)?
- The author's "basic claim is that decisions are legitimate if the level of deference the doctrine uses can be justified by reference to" the following factors.
a. institutional competence
But these are not objective criteria. "The question comes down to how we weigh the factors against each other." Although such an analysis will not produce 100 percent agreement among the attentive public, the author claims, "it will produce . . . more frequent agreement and more constructive disagreement" than accusations of activism [emphasis added] (45). Do you agree or disagree?
b. defects in democracy
c. the costs of error
d. the lessons of history
e. rules v. standards
- What are originalism and living constitutionalism (46-47)? Which position has the better of it? What does the author mean by "the precise understandings . . . [originalism] seeks to enforce are frequently imaginary" (49)? Is it possible for the meaning of a constitutional provision to remain constant while its applications change (52)? Is it legitimate to ask whether the purpose of a constitutional provision is better served by a static or a flexible range of applications (53)?
- Do changes in societal values related to such things as race and gender demand change in the Constitution through formal amendment, or can legitimate change occur though interpretation (54)?
- What does the author mean when he writes that legitimacy of doctrine depends upon whether it responds sensibly to the question of deference based on judgments about the representative process and the complications of factual questions (59)?
Chapter 4, Equal Protection, Criminal Procedure, Executive Detention
- How can Brown v. Board be justified as contrary to the Equal Protection Clause of the 14th Amendment when the Congress that proposed the 14th Amendment also maintained segregated schools in the District of Columbia? What was the reasoning of the unanimous opinion as expressed by Chief Justice Earl Warren (66-69)? Do you agree or disagree with it?
- Could Virginia support its Racial Integrity Act as a necessary means to achieve a compelling state interest (70-71)? Does the Constitution contain a right to marry?
- Why is a Miranda warning ("You have the right to remain silent....") required police procedure when it is not explicitly contained in the 5th Amendment's Self-Incrimination Clause (72-73)? Is it justified? Do you think a bright-line rule on this matter is better or worse than a broad standard of voluntariness (74)?
- Who should determine whether a captive is an enemy combatant, the executive or the judiciary (76-79)? If the 5th Amendment's Due Process Clause applies, it tells "us that people should not be locked up without an opportunity to present their side of the story to a neutral decision-maker." Does the principle of separation of powers prevent the executive from being arresting officer, prosecutor, and judge all in one? What did Madison and Hamilton have to say about this? Is there a lesson from Korematsu v. U.S., 323 U.S. 214 (1944)?
Chapter 5, Gay Rights, Romer, Lawrence, and Goodridge
- In 1992, how did Colorado set the bar for political participation higher for gays and lesbians than for other folks (92-93)? Is moral disapproval of a minority by the majority a legitimate governmental interest (94-95)? Are both individuals and governments entitled to be hostile toward gays and lesbians? Does the Constitution take sides in culture wars (96)?
- Should courts defer to majoritarian institutions to weigh costs and benefits accurately and not to impose burdens on a minority unless it achieves real benefits (97)? In order to justify a criminal law must a state identify harms other than moral disapproval (104)?
- What is the justification for states refusing to grant marriage licenses to gay and lesbian couples (105)? Does granting a person the right to marry a person of the same sex diminish the value or dignity of opposite-sex marriage?
Chapter 6, Abortion: Roe and Casey
- Why does Roosevelt write that Roe is "a woefully unconvincing opinion" and Casey, though better, does not repair Roe's defects" (112)?
- Why does Roosevelt contend that a law forbidding the use of contraceptives by married persons is more intrusive on privacy than one proscribing manufacture or sale of contraceptives? Do you agree or disagree? How does Eisenstadt (1972) differ from Griswold (1965) (113)?
- Does the Due Process Clause in the 5th and 14th Amendments protect certain "fundamental rights" not mentioned elsewhere in the Constitution? If so, is the right to terminate a pregnancy one of them? What does the 9th Amendment mean (130)? Should the Court be able to second guess state legislatures? Why or why not (114)?
- What do you think of Roe's trimester framework based on privacy compared to Casey's "undue burden" test based on liberty (116)? What are the reasons for and against stare decisis, or following precedent (117)?
- How do the restrictions on a state's legislative action in Calder v. Bull, 3 U.S. 386 (1798) relate to a state banning abortion (122)? If the meaning of due process is that governments can only make laws that offer "net benefits" to society, why should the Supreme Court, rather than representative legislative bodies, be the institution to determine what is beneficial? Is a law restricting abortion discrimination against women, against pregnant women, against pregnant, young, poor, unmarried women seeking abortion? To what extent should the government consider the interest of the fetus (123-125)? What do these matters mean for the Court's deference to legislatures (126)?
- Why does Roosevelt think that the "fundamental rights" versus "liberty interest" approach is wrong (127)? If men could get pregnant, would the balancing come out differently (128)? If states do not protect life over liberty in other cases, are they justified in doing so in cases of the life of a fetus versus the liberty of a woman? Should states redistribute the costs of restricting the liberty of women seeking an abortion?
Chapter 7, Takings: Kelo v. City of New London
- Is Kelo bad law, or is the New London city development plan bad policy (133-135)? How does Roosevelt characterize Senator Lindsey Graham's concern (135)? Do you agree or disagree? Do you agree or disagree with Justice Sandra Day O'Connor's dissenting opinion (136)? How is "public use" different from "public interest"? How does democracy offer a remedy in this case?
Chapter 8, The Establishment Clause
- Explain how the Civil War Amendments (13-15, 1865-1870) differ from the Bill of Rights (1-10, 1789-1791) in terms of the fear of governments abusing their power (141-144).
- Do you agree or disagree with the meaning of the Establishment Clause as manifest in liberty of conscience related to the Court's doctrines of neutrality, endorsement, and coercion (145-147)? Does prohibiting official prayer at public schools strike the wrong balance (149)? Are the phrases "under God" in the Pledge of Allegiance and "In God We Trust" on U.S. currency permissible patriotic slogans or impermissible religious exercises?
- Should the Court be condemned for its choice among legitimate doctrines?
Chapter 9, The Death Penalty: Roper and Atkins
- Is the 8th Amendment's prohibition of cruel and unusual punishment fixed or flexible (152)? Is the relationship between the nature of the crime and the severity of punishment (proportionality) part of the notion of cruelty (153)? Are juveniles and mentally retarded less blameworthy than competent adults (154)? Is there a sufficient consensus about this to formulate a judicial doctrine? Or is consensus part of majority rule while protection against cruel punishment is a minority right (155-156)? Is "cruelty" replacing "unusualness" as the sole criteria for punishment? See the California Constitution, Article I, section 17. What role if any should foreign law play in evaluating cruelty?
Chapter 10, The First Amendment: Campaign Finance Reform
- Roosevelt claims that the key question about the 1st Amendment is not whether a law restricts speech, but whether it improves or worsens the conditions for public debate (164). Do you agree or disagree? Can there be such a thing as "speech-friendly" regulation?
- When, if ever, should the Court defer to the legislature on regulating campaign finance? When should it not (165)?
Chapter 11, Refusing to Defer
- Is the Court or Congress in a better position to judge whether an activity affects interstate commerce? What doctrine would apply this conclusion (171)?
- Why did the Court change the pre-Lopez doctrine of allowing Congress to regulate activity that it rationally believes will affect interstate commerce? Should it have changed (174)?
- According to Roosevelt, how has the Court created illegitimate doctrine by conflating meaning and doctrine (175-181)?
- Is the meaning of Equal Protection "no unjustified discrimination" or "colorblindness" (184-185)?
- Should the Court defer to legislatures on Affirmative Action or require strict scrutiny (186-188)?
- Do you agree or disagree with the majority in Bush v. Gore (2000) that the different standards for recounting ballots set by Florida county canvassing boards denied equal protection of the law (190-191)? Is warding off a constitutional crisis a justification for accepting the legitimacy of a doctrine (195)?
- Roosevelt concludes that the disputed election returns from Florida in the 2000 presidential election should have been settled by Congress, not the Court (198). Do you agree or disagree?
Chapter 12, Reviled Decisions
- Why were Scott v. Sandford (1857) and Plessy v. Ferguson (1896) illegitimate (203-213)?
- In what way was Lochner v. New York (1905) misguided but not implausible (213-217)?
- What factors favored and opposed deference in Hirabayashi (1943), Korematsu (1944), and Endo (1944) (218-225)? Is it fair to conclude that no objective indicators of illegitimacy exist?
Chapter 13, Branches Behaving Badly: Whom Do You Trust?
- Has the Court deferred too much, too little, or about right? Is it guilty of imposing its own will or reflecting an emerging national consensus?
- Roosevelt concludes that loose talk of judicial activism is poisonous, complacent, self-serving, alarming, and corrosive (236). Do you agree or disagree?