The author's purpose and argument is to shed light on what justifies a constitutional decision and on the fact that the Supreme Court does not develop theories of “activism.” The author also seeks to argue that current hostility towards the court is unwarranted and that justices act in good faith. The book achieves the first aim but not the second. The author seeks to resolve the disagreement between conservatives, who seek a fundamentalist approach, and progressives, who argue that the Constitution and its interpretation is a work in progress, but fails to convince on either side. Whilst he provides interesting examples from the past and present to support his views, the argument is often lost in the tortuous, legally interpretative language. This is an academic read.

The book is somewhat unbalanced. Part I, setting up the academic case, is too long. It takes Roosevelt more than a quarter of the book to get to the meat of the argument. Also, there is too much concentration on decisions based on the Fourteenth Amendment, when other amendments deserve as much attention. There are several lacunae in Roosevelt's case. For example, he acknowledges that the decision in Bush v. Gore is illegitimate, or in his words is one “whose legitimacy is doubtful” (187). He then omits to nail the essential illegitimacy of the decision, namely the insistence of the court that it could not be used as a precedent.

In the “Hard Cases” section, Roosevelt includes Roe v. Wade on grounds of “a decision without a constitutional basis” (111). How a decision that has stood for thirty-three years can be treated as only political possibly shows a personal prejudice. Yet he omits California v. Ewing and California v. Andrade, two recent notorious decisions based on the legitimacy of “three strikes,” where the Eighth and Tenth Amendments clashed, resulting in long sentences for petty theft.

Another serious omission is the failure to discuss ground-breaking decisions such as Furman v. Georgia and Gregg v. Georgia in the “Death Penalty” section. Surely, Death is a Different Doctrine deserves discussion as an example of judicial activism.

In a book of comparatively short length, it is easy to criticize omissions. However, there has to be doubt that the argument has been made effectively. Given that there is now a Democratic Congress and possibly a Democratic executive within two years, it will be interesting to test Roosevelt's theories, particularly the good faith of justices, against a background of politically embattled branches of government.