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Wednesday, December 13, 2006

Chemerinsky on Roosevelt in the new issue of Democracy

The new issue of Democracy: A Journal of Ideas has been released. The issue contains, among other things, Erwin Chemerinsky's review of The Myth of Judicial Activism, by Prawf alum Kim Roosevelt (Penn). While praising some aspects of Roosevelt's book, Chemerinsky finds that the judicial theory espoused in The Myth of Judicial Activism ultimately undermines the very case for judicial theories generally. As you may have seen in Kim's PENNumbra debate with our own Rick Garnett, Kim claims that a legitimate decision requires prudent consideration of the following factors: institutional competence, lessons of history (typically with respect to discrimination), costs of error, defects in democratic representation, and rules vs standards.

According to Chemerinsky, this multifactor test is too loose to provide a useful theory. He states:

Roosevelt could not have a more sympathetic reader than me. I share his view that the focus on judicial activism is misguided; it is political rhetoric without substance and gives a misleading impression about what courts and judges do. And, almost without exception, I agree with his position on each of the[] hot-button issues he covers. I would like to see him succeed in justifying the results he advocates. The problem is that the five factors he identifies don’t add up to a useful theory of judicial review.


First, according to Chemerinsky, Roosevelt "does not adequately explain" why three of the five factors (institutional competence, costs of error, and rules vs standards) should be used. Second, Roosevelt fails to offer sufficient "criteria for determining when" a factor cuts in one direction and not another, such as when rules are better than standards or standards are better than rules. As a result, the "multifactor analysis inevitably means that there is a great deal of discretion and that almost any result can be reached, as some factors point one way and others in a different direction." In other words, the theory can justify both A and not-A in many cases.

Chemerinsky offers an anti-theory perspective of his own at the end of the review:

Perhaps, then, it is time to move past the judicial-theory obsession and focus instead on arguing over the best constitutional vision for each area of constitutional law. What is the best way to understand the president’s powers as commander-in-chief? What is the best way to understand what is “cruel and unusual” punishment? What is the best way to understand the protections of the free exercise clause? In each area, the discussion and disagreement will be about text and structure, purpose and precedent, and tradition and contemporary needs and values. Inescapably, constitutional law requires that Justices make value choices that cannot be determined by any constitutional theory. What is a “legitimate” or an “important” or a “compelling” government interest? No constitutional theory, including Roosevelt’s, can provide a coherent way of determining this.

So I wonder how Kim would respond to this. My sense from what I've read of Kim's work elsewhere (and I haven't read the book so please correct me if I'm wrong) is that Kim's ambition with the theory is more modest; it is not to explain what the correct outcome is in any particular case, but rather to point the way to a vision of adjudication that could at least tell us which modes of reasoning and which outcomes are "illegitimate." Thus, some things are viewed as impermissible.

As Chemerinsky notes, Kim does express disdain for much of the substantive due process jurisprudence. But to this, Chemerinsky seems anxious. He writes:

Overruling the substantive component of due process would radically change the law, including overruling Supreme Court decisions protecting the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right to control the upbringing of one’s children, the right to purchase and use contraceptives, the right to engage in private consensual homosexual activity, and the right to refuse medical treatment.

This parade of horribles will be familiar to readers of the Sunstein-Prakash debate. And to my liberal ears, these would be bad results. But the question is whether these policies are constitutionally required. In the absence of substantive due process rights, most state legislatures would protect most of these "rights" through statutes. Or, we might see more constitutional amendment activity, which might not be a bad thing considering, per Sandy Levinson, how undemocratic the American constitution is. In any event, perhaps Kim will take a moment to respond to Erwin's critique.

In the meantime, check out some of the other articles in Democracy:

Peter Bergen and Michael Lind take on the conventional wisdom that it’s economic deprivation that leads people to join terrorist groups. Jeff Faux, president of the Economic Policy Institute, crashes the Party of Davos and asks: Why can’t globalization work for workers too? Aaron Chatterji and Siona Listokin - of Duke's Fuqua School of Business and the University of California, Berkeley, respectively – make the progressive case against corporate social responsibility. Kevin Mattson charges that the history profession has been stuck in the ivory tower, leaving pundits and ideologues to distort our past and political discourse. In examining the future of American foreign policy, Suzanne Nossel makes the case for American legitimacy; Joshua Kurlantzick writes that to handle China, we need to look to India; Gayle Smith, of the Center of American Progress and a former National Security Council official, argues for adding human security to our discussion of national security; and Nancy Soderberg, a former deputy ambassador to the United Nations, says that the UN is more indispensable than ever to U.S. interests. And on issues closer to home, Gara LaMarche examines the history of the ACLU, Harvard’s Jerold Kayden critiques Joel Kotkin's urban vision, and historian Ellen Fitzpatrick looks at how public opinion research has shaped American life.

These articles are available at www.DemocracyJournal.org.

Posted by Administrators on December 13, 2006 at 09:56 AM in Article Spotlight, Constitutional thoughts, Dan Markel, Legal Theory | Permalink


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In the new issue of the journal Democracy, Erwin Chemerinsky has this review (free registration req'd) of Kermit Roosevelt's new book, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. At PrawfsBlawg, Dan Markel reacts to Chemerin... [Read More]

Tracked on Dec 13, 2006 4:46:01 PM


Erwin Chemerinsky is God.

What ever he says should be inserted between Numbers and Deuteronomy.

Posted by: anon | Dec 13, 2006 7:22:11 PM

Erwin Chemerinsky is right that he is about as sympathetic a reader as I could ask for, and beyond that he is a brilliant and erudite scholar. So it’s doubly disappointing that I seem to have failed to convey my basic point. The book is a response to charges of activism—that judges are abusing their authority and imposing their personal preferences in the guise of constitutional law. That is a very strong charge, and consequently a defense can be relatively weak. I set out to explain why most of the decisions attacked as activist are justifiable and legitimate—that is, to explain why they are something more than the imposition of policy preferences. “Legitimate,” as I tried to explain, does not mean “right” or “best.” Erwin is quite correct to point out that in many cases—the ones I call “hard”—a decision going the other way would also be legitimate. That is to say, in hard cases, a decision either way is typically not an abandonment of the judicial role. Phrased that way, I hope the conclusion seems rather obvious. The theory I propose tries to do much less than Erwin thinks. Precisely for that reason, as I will explain, I believe it does more than he gives it credit for.

If the factors are not supposed to point ineluctably to a correct result in every case, what’s the point of setting out them out at all? There are basically three things I hoped to achieve. First, by casting the core issue in terms of whether the Court should defer or not—that is, whether the Court or some other body is the best decisionmaker—I hoped to make clear that we should think of debates over judicial activism as basically a separation of powers issue. The portion of the American public that responds to rhetoric about activism frequently seems unaware of this: they are distrustful of courts, but also of Congress and the President, and they don’t seem to understand that bringing courts to heel will place the public more at the mercy of the other branches.

Second, I hoped to offer a framework for more productive debate. Within the realm of legitimate decisionmaking, there are better and worse decisions. One can argue that in a given case, the alignment of factors makes one level of deference more appropriate than another. And this argument, I hoped, is one that can make progress. The factors I offer are relatively apolitical—that is, they are considerations of what Jack Balkin and Sandy Levinson have called “high” or constitutional politics rather than “low” or partisan politics. People will of course disagree about the relative significance of the factors—and, as I noted, they may propose others. But because a discussion of the appropriate weight of particular factors does not immediately invoke partisan preferences, it may be fruitful. At the least, it allows us to check whether we and our opponents are being consistent in the significance we attach to particular factors in different contexts.

Last, I suggested that in choosing judges, we should be interested in their views on when courts should defer and when they should not. Just as citizens can discuss these issues without falling into partisan disputes, judges can discuss them without evaluating particular decisions (something apparently off-limits in the confirmation process) and still tell us something useful about their approach to constitutional law (which the current practice of promising to be an umpire, not a player, does not achieve).

Posted by: Kim Roosevelt | Dec 13, 2006 1:29:52 PM

I think Dan is right, and that Kim's aims in "The Myth of Judicial Activism" are "modest": that is, the goal is "not to explain what the correct outcome is in any particular case, but rather to point the way to a vision of adjudication that could at least tell us which modes of reasoning and which outcomes are 'illegitimate.'" So, to Prof. Chemerinsky's objection that Kim's "multifactor analysis inevitably means that there is a great deal of discretion and that almost any result can be reached, as some factors point one way and others in a different direction," the latter would (I suspect) say, "right."

Posted by: Rick Garnett | Dec 13, 2006 10:27:09 AM

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