sooner. This is the second main theme of the film, with the war coming to an end, with the legitimate attempts by the South to make overtures for peace adding an el- ement of genuine drama to the film. On a technical matter, this film also reminds us of the true meaning of a “lame duck Con- gress,” when Lincoln was surgically able to take advantage of the fact that back in the middle 1800s, the 39th Congress was not installed until March 4th. There is actually an indirect reference
to Vermont in the film. As Edwin Stanton, the secretary of war (now defense) said, “You’re going to tell one of your stories. I can’t stand to hear another one of your sto- ries.” Well, one of the stories Lincoln told, with the desired effect of reducing the ten- sion in a stressful situation, involved Ethan Allen, England, and a toilet. The “rule of spoilers” requires that the charming story NOT be elaborated here!
The living quarters of the White House should remain a black box to us all. We can only surmise at the interaction of presi- dent and spouse to this day. In a forceful performance, a convincing Sally Field sug- gests that Mary Todd Lincoln had her input to Abraham’s policies. “Seward can’t do it. You must. Because if you fail to acquire the necessary votes, woe unto you, sir. You will answer to me.” Lincoln did get those votes. As Thaddeus Stevens said, “The most liber- ating constitutional amendment in history, passed by corruption, aided and abetted by the purest man in America.” This Lincoln does a good job at showing how. ____________________ David Orrick is professor of criminal jus- tice at Norwich University, where he teach- es a course on the role of film in the exami- nation of justice. He previously served as staff attorney for the National Center for State Courts and as court planner at the Vermont Supreme Court.
BOOK REVIEW Kermit’s Views
A Disappointing Look at a Mythical Myth
Reviewed by Jeremiah Newhall, Esq.
Kermit Roosevelt’s first nonfiction book (he has also written a novel) would be more accurately titled “Kermit’s Views on the Constitution,” though that would proba- bly sell fewer copies. Roosevelt dismisses his ostensible topic, judicial activism, as a boogeyman in his introduction and never looks back. He defines judicial activism as judges placing their personal views ahead of the letter of the law, whether for moral or policy reasons, and asserts that judicial ac- tivism, so defined, is not a “real” phenom- enon worthy of further analysis. “Activism” is just a way to describe decisions we dis- like, Roosevelt insists, and he devotes the rest of his book to advocating a vocabulary change to describing decisions as “legiti- mate” or “illegitimate” instead. There are two problems with this thesis. The first is that judicial activism, as Roos- evelt defines it, is not a myth at all. Justice Thurgood Marshall, whom Roosevelt sees fit to mention only once and in passing, fa- mously told his law clerks that his judicial philosophy was simple: “You do what you think is right and let the law catch up.” That is precisely what Roosevelt defines as ju- dicial activism, and it is strange to write a book on the subject that ignores judicial ac- tivism’s most storied advocate. Moreover, Marshall’s judicial philosophy is eminently sensible: because our laws are drafted by humans, they are imperfect, and thus the letter of the law will not work justice in ev- ery case. The real myth is that our judges and justices can be asked to enforce the letter of the law even if they find its appli- cation to a particular case to be morally re- pugnant. Rather than grapple with this di- lemma that most judges will face at least once in their tenure, and which Supreme Court justices will face often, Roosevelt dis- misses it as a fiction. That is a shame be- cause, though the book was published in 2006, judicial activism remains at the fore- front of our national debate over confirma- tion of judicial nominees. The second problem is that Roosevelt’s substitute criterion, that a decision should be “legitimate,” is so slippery that virtual- ly any decision makes the grade. He’s will- ing to condemn Dred Scott and Koremat- su, but don’t ask Roosevelt to take a firm stand on abortion, the death penalty, cam-
32 THE VERMONT BAR JOURNAL • WINTER 2013
paign spending limits, or other divisive top- ics. He exhorts readers not to judge deci- sions by whether they like the outcome, but by whether the reasoning is consistent with objective rules of interpretation—yet he admits to backtesting his own rules against past cases to ensure that they would have supported the outcomes that he likes. That mental circumlocution lets him pretend to evaluate decisions based on rules, rath- er than on outcomes. Roosevelt is start- ing with what he thinks is right and letting the law catch up; he’s just pretending that he’s not, and he’s hoping that you will, too. Don’t believe it. As mentioned at the beginning of this re-
The Myth of Judicial Activism Kermit Roosevelt
Yale University Press; 2006; 253 pp.; $32
view, the meat of Roosevelt’s book is not an examination of either “legitimacy” or “ac- tivism,” despite the title’s promise. Instead, most of the book consists of Roosevelt’s lecture on what he regards as the superi- or method of constitutional interpretation (statutory interpretation is all but ignored). This is largely unobjectionable, no better or worse than the many other ruminations on the Constitution that law reviews use to pad their page counts. But, remarkably for the author of such a slim tome (the book is 236 pages without the index), Roosevelt man- ages to make his short chapters overlong. He belabors his points too often, explaining at length the most basic of legal concepts, and then explaining them yet again, this time illustrated by a series of crude drawings meant to clarify what was never opaque. For example, he might illustrate my opinion that he tends toward the loquacious like so:
No doubt his novel is better. Let’s hope
there are no drawings. ____________________ Jeremiah Newhall, Esq., is a staff law clerk for the United States Court of Appeals for the Seventh Circuit. The views expressed in this review are his alone, and do not reflect or reveal the opinions of any judge on the court.
www.vtbar.org
At The Cinema: Lincoln
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