Overview

America's Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. Dow confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America's prophets. Dow argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method. Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But Dow argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

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DAVID R. DOW is University Distinguished Professor at the University of Houston Law Center and Visiting Professor of History at Rice University. His areas of expertise include contracts, constitutional law, and death penalty law. He has handled more than fifty appeals, including 25 death penalty appeals. He earned his J.D. from Yale University, where he was an editor on the Yale Law Journal. He is the author of three books, including Executed on a Technicality (2005) and Machinery of Death (2002), and more than one hundred book chapters and professional articles. His essays and editorials on abortion, polygamy, gay marriage, affirmative action, separation of church and state, biblical law, and judicial activism have appeared in The New York Times, The Washington Post, The Christian Science Monitor, The Progressive, The Houston Chronicle, and The Dallas Morning News.

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