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Scientific American magazine once offered several thousand dollars for the best explanation of the Theory of Relativity � in 3,000 words or less. Albert Einstein declined to enter the contest, noting ruefully, “I don’t believe I could do it.” In a different context, Kermit Roosevelt III has bravely attempted what Einstein would not. In 262 short pages, his book, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale University Press paper ed. 2007), attempts to explain the U.S. Supreme Court’s constitutional analysis in a way “that will be illuminating and useful to non-lawyers,” offering “a perspective from which citizens can judge the Court.” This is a noble goal. Which means that it is probably doomed. Constitutional law is among the more difficult subjects tackled by law students, who have the benefit of four years of college and, typically, a year of legal study before they even make the attempt. I fear that this book may find only a small audience and produce mixed results, despite Roosevelt’s best efforts. But his best efforts are pretty darn good. Roosevelt is that rarest of breeds: a law professor who writes clearly and succinctly. His argument is well-organized and well-stated, and he offers a number of thought-provoking observations. Roosevelt’s primary argument is that constitutional interpretation is not solely the province of the Supreme Court, but rather a responsibility shared with other governmental actors, and that, therefore, the court should often give some degree of deference to the president, to Congress or to state governments. Roosevelt determines the appropriate degree of deference through consideration of four factors: the relative competence of the court and the other governmental actor to make a particular decision; historical analysis; the integrity of the other governmental actor’s decision-making process; and the potential harm of erroneous decisions combined with the difficulty of correcting them. He also considers whether the adoption of a broad standard or bright-line rule will best guide lower courts in the future. If the court reasonably weighs these factors and reasonably defers (or not), then its decision is “legitimate.” If the court fails to reasonably assess these factors, its decision is likely “illegitimate.” In essence, Roosevelt is borrowing a concept familiar to appellate advocates everywhere: the standard of review. An intermediate appellate court must use the correct standard to evaluate a trial court’s legal determinations and factual findings, whether “de novo” or “abuse of discretion” or something in between. Similarly, the Supreme Court should apply the correct level of deference to its constitutional cases. But therein lies a problem. Just as standards of review don’t necessarily determine the outcomes of garden-variety appeals, neither does Roosevelt’s analysis tell much about whether a given Supreme Court decision is worthy of criticism or respect. “Legitimate,” according to his standard, arguably covers a multitude of constitutional sins, from Lochner (!) to Korematsu (!!) to much of the court’s patchwork of establishment clause rulings (!!!). If Roosevelt intends merely to point out that reasonable minds may differ, well then, fine. But if he’s trying to establish a greater framework for evaluating high court decisions, one might reasonably respond, “Please sir, I want some more.” Equally perplexing are some of the things Roosevelt finds “illegitimate,” including, most notably, the analysis used in Grutter v. Bollinger, which approved the use of affirmative action in the University of Michigan Law School’s admissions process. Roosevelt does not criticize the holding. Rather, he considers the court’s use of strict scrutiny to evaluate affirmative action programs to be “illegitimate.” Apparently, reasonable minds cannot plausibly believe that the equal protection clause generally requires the government to treat people of all races equally. Finally, Roosevelt could have picked a better title. Rather than emphasizing his (very effective) debunking of the “activist” label so often hung on (mostly liberal) judges, Roosevelt could have more accurately described his book with a title like The Legitimate Constitution. True, he uses a lot of ink refuting vitriolic latter-day originalists, but this refutation is not the main thrust of his argument. It remains to be seen whether Roosevelt’s worthy attempt to simplify arcane concepts like originalism and strict scrutiny will ultimately lead to greater and more elevated citizen involvement in judging the Supreme Court. I hope so. I hope for a lot of things. Stewart Harris is an associate professor of law at the Appalachian School of Law, where he teaches civil procedure and constitutional law.

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