That’s the same Kermit Roosevelt (Kermit Roosevelt III, to be precise) whose thoroughly confused book defending judicial activism, The Myth of Judicial Activism, I reviewed a couple of years ago. My closing paragraphs apply as well to his defense of Justice Souter’s malfeasance in Casey:
When judges override a legislative enactment, citizens have the right to demand that the judicial decision be right–and that a decision that usurps the political process be overturned. No citizen should be expected to roll over and play dead merely because that decision is a plausible (but not correct) application of a plausible (but not correct) understanding of a constitutional provision.
As Abraham Lincoln put it, “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Roosevelt could also learn from comments that another president–his own great-great-grandfather–made (during wartime, no less) in defense of a citizen’s right to criticize the president. As Theodore Roosevelt made clear, his comments apply fully to other important “public servants,” and I therefore adapt them:
It is exactly necessary to blame [a judge] when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce . . . that we are to stand by the [judge], right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.