JUDICIAL ACTIVISM: A RESTRAINED DEFENSE by Sterling Harwood. Revised edition . Bethesda, MD. Austin & Winfield, Publishers, 1996. 167 pp.  Cloth $69.96. Paper $49.95.

Reviewed by Dennis J. Goldford, Department of Political Science, Drake University.
 

The purpose of this short book is to provide a defense of judicial activism, which the author defines broadly as "the acceptance of judicial change of law" (4). Embedded in that broad idea, he states, are four principal elements: 1) refusing to take an attitude of judicial deference (i.e., respect) for legislative or executive power of judgement; 2) relaxing requirement for justiciability (e.g., relaxing requirements for standing to sue); 3) breaking precedent (i.e., failing to follow stare decisis); and 4) loosely or controversially construing constitutions, statues or precedents (e.g., an interpretation venturing beyond any plain meaning of a statue)" (2). "Passivists," by contrast, are those who reject these points. The book consists of six chapters, four appendices, a bibliography, a table of cases cited, an index of subjects, and an index of names.

Chapter 1, from which the foregoing citations are drawn, presents a working definition of judicial activism. Chapter 2 attempts to defend activism against objections based on considerations of democracy, arguing principally that activism is not undemocratic as its critics maintain, and that judges are indeed accountable, if indirectly, to Congress.

Chapter 3 attacks the authority of precedent by attacking the arguments that stare decisis "increases 1) the fairness of treating like cases alike; 2) the predictability of the law, thereby facilitating planning and avoiding unfair and uneconomical surprise; and 3) the efficiency of judges in making decisions" (47). In Chapter 4 the author attempts to show that considerations of due process support activism and in Chapter 5 he tries to rebut Richard Posner's critique of activism. Chapter 6, starting at page 101, is merely a summary of the previous chapters and thus the substantive argument of the book occupies just 100 of the 167 pages of the text. In the 28 pages of appendices, the author provides lists of selected writers he considers activists (Appendix A) and passivist (Appendix B), and selected judicial opinions he considers activist (Appendix C) and passivist (Appendix D).

Beyond providing the foregoing description, I must admit to finding this book a vexing one to review. The necessary condition of any attempt to convince someone of the importance and validity of an argument we might wish to make is that such a someone must be willing to listen to the case we present. I do not know the author, but I regret to say that I found reading this preposterously priced book to be a difficult experience. More an extended article than a true book, JUDICIAL ACTIVISM: A RESTRAINED DEFENSE reads like a series of what one might call microarguments -- not unlike a lecture committed to paper -- without the benefit of broader context or visual aids.

Presumably in service of organization and clarity, sections of the text are numbered and lettered to the point of pedantry and confusion. Consider the first few headings of Chapter 2 entitled "Activism and Democracy". "Ch.2A: Introduction;" "Ch.2b: More Specific Democratic Flaws Alleged Against Activism;" "Ch.2B1: Specific Passivist Argument #1: Activism Reduces Effective Democratic Participation."

Substantively, the bulk of the text seems to be principally an argument by default - i.e., a negative argument to justify judicial activism by attacking the concept of judicial restraint. The author refers to a large number of writers, but his treatment of them, often superficial or otherwise without introduction and explanation, presupposes a reader well versed in the literature he cites. The appendices add nothing of value or content to the argument. Finally, the book is marred by various types of errors (e.g., a stray sentence fragment at p. 6 and "hallow" instead of the correct "hollow" at p. 32), and should not, if it truly is a 1996 revision, refer as it does at p. 24 to "Judge Clarence Thomas' nomination, the most recent to the Supreme Court . . ." What happened to Justices Ginsburg and Breyer?

By this point, the reader of this review will have noted that while I have tried to provide a description of the author's argument, I have not attempted to engage that argument substantively. The gist of this review, is that the author did not write a book that makes me want to engage it thusly. The topic of JUDICIAL ACTIVISM: A RESTRAINED DEFENSE is interesting and important. This treatment of that topic, I am sorry to say, is not.