The Wolves and the Sheep of Constitutional Law: A Review Essay on Kermit Roosevelt's - the Myth of Judicial Activism

Abstract

The debate over judicial activism is nothing new, but recent years have seen the debate becoming increasingly bitter. In The Myth of Judicial Activism, Professor Kermit Roosevelt tries to provide a more levelheaded assessment of the judiciary's role. But his approach - which largely adopts the consensus of the legal establishment - suffers from a fundamental flaw: like Judge Robert Bork and Justice Steven Breyer before him, Roosevelt centers his jurisprudence around preserving democratic decisionmaking, rather than protecting liberty. This basic error renders this approach incompatible with the constitutional design, and distracts all of these thinkers from the more fundamental philosophical issues that lie at the heart of the judicial activism debate. This article uses Roosevelt's book as a point of departure for a more general discussion over the judiciary's role in preserving the fundamental constitutional value of liberty, and explains why focusing on democracy rather than liberty leads to erroneous conclusions.