"MEN IN BLACK" REVIEW IN SLATE

The Limbaugh Code
The New York Times best seller no one is talking about.
By Dahlia Lithwick
Posted Friday, April 1, 2005, at 3:21 PM PT

(Hat tip to The Daily Howler)

EXCERPTS:

The argument here is not new. In fact, one of the reasons it's impossible to call Men in Black a work of legal scholarship is that there is not an original piece of analysis in it. Levin is railing against the Supreme Court for being a bunch of "activist judges" that "now sits in final judgment of essentially all policy issues, disregarding its constitutional limitations, the legitimate role of Congress and the President, and the broad authority conferred upon the states and the people." So far so good. The country needs a smart, scholarly book anatomizing for lay readers the arguments against the high court's ever-increasing involvement in political life.

Absent any structure or argument, this book could just have been titled Legal Decisions I Really, Really Hate. Levin follows the lead of lazy pundits everywhere who excoriate "activist judges" without precisely defining what constitutes one. He offers four random examples of "activist decisions" which mysteriously include Dred Scott v. Sandford (which was nothing of the sort) and Korematsu v. United States (a decision he trashes for its deference to executive-branch authority in wartime shortly before shredding the current Supreme Court for refusing to uphold the same principle in last summer's enemy-combatant cases). Levin rails for the first half of his book about the ways in which the high court usurps Congress and the president, then rails about the court's failure to strike down their campaign finance law.

Take this example: Discussing last summer's Rasul v. Bush case, Levin dismisses Justice Stevens' analysis distinguishing enemy combatants in a 1950 opinion from the enemy combatants at Guantanamo Bay because "the principle is the same" and "the two cases are identical in two significant respects." If judges in fact got to decide cases based solely on the fact that "the principle is the same"—that is, that each case is kinda analogous—we really would have a runaway judiciary.