Bench Memos

Debating “Judicial Activism”

Over at the Penn. Law Review’s “PENNumbra” site, they are hosting an online debate between me and Professor Kermit Roosevelt about Roosevelt’s new book, The Myth of Judicial Activism. Here’s the teaser:

“Judicial activism,” writes Professor Kermit Roosevelt, of Penn, has been employed as an “excessive and unhelpful” charge—one “essentially empty of content.” As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with “much, though not all,” of Roosevelt’s position.

Ultimately, Garnett suggests “that ‘judicial activism’ might be salvaged, and used as a way of identfying and criticizing decisions . . . that fail to demonstrate th[e] virtue” of constitutional “humility.”

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