Mistaking the Window-Dressing for the Window

By Hills, Roderick M., Jr. | Judicature, November/December 2007 | Go to article overview

Mistaking the Window-Dressing for the Window


Hills, Roderick M., Jr., Judicature


Mistaking the window-dressing for the window by Roderick M. Hills, Jr. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, by Kermit Roosevelt III. Yale University Press. 2006. 272 pages. $30.

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. I shall suggest below that, with a few important qualifications, this theory is an imperfect description of what courts do in fact and an unsatisfying recommendation for what courts ought to do as a matter of normative theory. But the accessibility and intelligence of Professor Kermit 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.

Professor Roosevelt starts with a simple and provocative premise: Most constitutional disagreements are not about what the Constitution itself means. Instead, they are generally about how best to implement our uncontroversial ("relatively plain," as Roosevelt observes (p. 41)) but extremely abstract constitutional commitments. These commitments by themselves are so general that they can resolve no specific case (p 16).

To fill this gap between abstract commitment and specific decision, courts invent doctrine-judicial decisions that determine when political actors can be trusted to enforce our shared values. Doctrine looks to various "factors" to make predictions about how well courts and politicians are likely to adhere to those shared general values. These factors include the historical track record of the competing institutions in protecting our constitutional values, the costs of over- and under-enforcement of the values, as well as the likely skill of judges in fashioning a manageable rule (pp. 24-28). It is a "myth" to think that judges could decide cases by following marching orders directly in the Constitution, because the Constitution itself has nothing much to say about how its general values should be implemented in a specific case. Once we see through this myth, we can more intelligently assess the legitimacy of judicial doctrine by assessing whether its prediction of politicians' trustworthiness and judicial competence are reasonably accurate.

Doctrine and meaning

Professor Roosevelt repeatedly invokes the Court's doctrine on racial classifications to illustrate this distinction between constitutional doctrine and constitutional meaning. The doctrinal rule that racial classifications must be subject to strict judicial scrutiny nowhere appears in the text or original understanding of the Fourteenth Amendment's equal protection clause, (pp. 184-85) The actual meaning of this clause is simply a generic ban on "unjustified discrimination," which, according to Roosevelt, is discrimination motivated by "a desire to harm" or discrimination in which the "benefits" do not "outweigh the burdens." (pp. 22-23, 32, 177).

According to Roosevelt, the Court requires strict scrutiny for race only because, in light of our historical experience of slavery, the Black Codes, and Jim Crow, judicial second-guessing of racial classifications is a cost-effective prophylactic rule for eliminating a species of "unjustified discrimination." But it is that more general category-"unjustified discrimination"-that the Fourteenth Amendment prohibits. The judicial doctrine that focuses on race, therefore, ought not to limit Congress or the president from adopting a different sort of rule attacking other species of "unjustified discrimination," such as disability-based discrimination: "[t]here is no reason why enforcement [by the political branches] should be measured against the rules that the Court has adopted to guide its own conduct" (p. 181).

Professor Roosevelt offers similar accounts of a wide range of doctrines, including Miranda's implementation of the Fifth Amendment's prohibition on compelled self-incrimination to Hamdis and RasuTs limits on executive power to hold foreign prisoners free of judicial oversight.

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