The battle cry of the republicans lately has been that America is under attack from 'activist" judges that do not strictly interpret the Constitution. Much ado is made about installing judges who would of course be completely neutral and make their decisions based completely on the Constitution.

But would they actually be any different? While Some judges do seem to stretch interpretation to make the case for their decision but just how would a strict interpretist benefit us any better.
Often those who cry out for that type of judge do so to protect the status quo and prevent changes that they disapprove of.

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?

Which is more beneficial to American society and which is more harmful?

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?


Of course. There is a huge difference. Judges shouldn't be stretching interpretations to bring about change to begin with. They are supposed to be interpreting the law -- not making it. Making law is the job of the Legislature. It is wrong to look at strict interpretation as "preventing" change. "Change" should be off the table regardless of the political persuasion of the judge. The only "change" that should occur is if a prior interpretation somehow got it wrong. In addition, Judges should also have a great deal of respect for past decisions: stare decisis. Stare decisis would insure that established decisions remain valid. Even controversial ones that have been in place for decades, like Roe, need to be respected. You have to remember that federal judges are not common law judges. Their role is to interpret the federal constitution. State law judges can make law through the common law. This is entirely different (and it is appropriate). We need judges on the bench who respect the constitution and interpret it. We could take a lesson from Europe in this regard. Europe is for the most part, a civil law system. They are very adept at statutory interpretation and linking and basing and grounding their decisions in the text. This is what we need to demand of our federal judges.

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?

If they are truly strict constructionists they will be able to do this. Scalia is the perfect example of a strict constructionist. It is very difficult to point up inconsistencies in his decisions. Although some do try. I saw a N.Y. Times article recently that tried to do this. But what the article did not factor in -- was Scalia's healthy respect for this rule of "stare decisis". A strict constructionist will not revamp past constitutional decisions even if those decisions are not firmly based in a textual reading of the constitution.

Which is more beneficial to American society and which is more harmful?

Hands down-- activist judges are more harmful. If a judge is not bound by the text of the constitution-- what are the criteria he uses in arriving at a decision? A strict constructionist is bound by the constitution and cannot go outside the text, and will respect precedent but be hesitant to extend it unless it is clearly supported in the text. Because an activist judge is not bound by the text he can point to no criteria or principles other than his own views and we have tyranny.

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?
I agree with Hayleyanne on this point; the judiciary is intrinsically a conservative (in the sense of not making innovations) institution. There is a big difference between the two cases. In one, the judge is violating the basic function of the judiciary, and in the second, he is maintaining it.

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?
I think not, and I offer as an example the classic case of Gore v Bush (2000). It is ironic that Hayleyanne uses Mr. Justice Scalia as her poster boy for strict constructionism. While he has been fairly consistent in the past, in Gore v. Bush he trampled on all the main principles he has espoused. I have here with me Alan Dershowitz's book on the case and it devotes five pages to presenting Scalia's inconsistencies. And Scalia is only the poster boy for the conservative cause; there are plenty more conservative justices who are just as activist as liberal justices. Historically, conservative judges have been just as innovative as liberal ones. Look at the Supreme Court during the period 1920 - 1940.

Which is more beneficial to American society and which is more harmful?
I believe that judicial innovation is harmful to society. It is perfectly acceptable for the judiciary to interpolate law, but zigging and zagging about is always harmful.

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?

When faced with a constitutional issue, I tend to side with the wording of the constitution. If I feel the issue is valid, but has no basis of support in the constitution then I feel it is the job of the people, through the legislative branch and/or the states, to create a constitutional amendment to correct these problems.

However, the issue usually comes down to a difference of opinion in determining if the constitution supports of prevents the measure in question. This is where the waters get muddy and the political motivations of Judges surface. Judges, faced with an issue that has no clear cut answer in the constitution will frequently decide for or against the measure based on their ideology and then seek ways to justify their decision in the constitution no matter how convoluted. This is universal. It matters not if a Judge is a Liberal, a Conservative, or a Centrist.

However, since a Centrist (or Moderate if you prefer) is more likely to be in tune with the majority of Americans then either political poll, I would prefer to take my chances on them.

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?

No. No one can completely rule out their own bias on the issues. It is human nature to assume your take on something is the correct one. If you feel your position is correct, then you enter into an issue debate with a bias that favors your viewpoint. To change that viewpoint others have to make a strong enough case to override your natural bias on the matter. This of course only works if you are not so blinded by partisanship that you refuse to hear what is said by others (a problem frequently seen in Washington on BOTH sides of the aisle). The best we can do in this regard is seek reasonable people to fill the role of judges. a fence sitter has a better view from the top of that fence to look at both sides in a effort to decern the truth then someone residing solely on one side or another where they can't see over the top to even acknowledge that another valid position exists.

Which is more beneficial to American society and which is more harmful?

Both polar opposites are potentially harmful on the bench. Both polar opposites have their own history of "judicial activism". If you want to avoid harm, then avoid nominees on either political extreme. Look to the middle for your next member of the judiciary, if you wish to have the least problems with partisanship on the bench.

OverlandS:

By definition a strict constructionist is not going to insert his political views into his interpretation-- or at least only minimally. You can't have "judicial activism" with a strict constructionist. Of course you can have a conservative judicial activist, but that person would not be a strict constructionist.

I agree, however someone saying they are a strict constructionist, or even someone others say is a strict constructionist does not mean the person is without bias. All it really means, is that those who see them this way share their bias. This is not always true, but it is so more often then not.

Is there an example of a Strict Constructionist in Modern History?

I heartily agree. While there were some justices in the early part of the 20th century who could fairly be called strict constructionists, I can't think of a single justice since World War II who deserves that label. Every one of them has shown more political consistency than judicial consistency.

I just came across some material on just this subject regarding Janice Rogers Brown, one of President Bush's judicial nominees:

"Justice Brown's colleagues on the [California State Supreme] court have repeatedly remarked on her disrespect for such legislative policy judgments, criticizing her, in different cases, for "imposing ... [a] personal theory of political economy on the people of a democratic state"; asserting "such an activist role for the courts"; "quarrel[ing]... not with our holding in this case, but with this court's previous decision ... and, even more fundamentally, with the Legislature itself"; and "permit[ting] a court ... to reweigh the policy choices that underlay a legislative or quasi-legislative classification or to reevaluate the efficacy of the legislative measure."

The source on this is something called the "Alliance for Justice"; I found it at this site. If you want to see more conservative judicial activism, do a search on the phrase "Constitution in exile".

Scalia is the perfect example of a strict constructionist. He is strident about it and it is very difficult to point up inconsistencies in his jurisprudence. Critics attempt to do it though. I will get you the link to the NY times opinion piece that tries to paint him as activist. The problem with the author's examples are that they do not take into account that Scalia will follow stare decisis and uphold established precedent even where it is inconsistent with a true textual reading. People don't understand that true strict constructionists will not overturn precedent to bring it in line with the text. The only other criticism they can muster against him is the Bush v. Gore decision. His holding on that is inconsistent with prior holdings that favor federalism. Scalia himself is forthright and acknowledges the inconsistency. First off, one "inconsistent" decision is a pretty slim track record. Second, the reasons for it were unique: a need for a speedy decision on the election weighed heavily into the decision and second, as a matter of policy, the "choice" in the election was better made by the U.S. Supreme Court than the Florida Supreme Court.




Scalia is a strict constructionist. In fact, he has taken it up as a true "calling" to get out and educate the country about the need for strict judicial review. Those who purport to prove that he is activist are both unfair and partisan. A careful review of his jurisprudence makes clear that he is not an activist justice.




First off, alliance for justice is a very partisan left wing organization. You have to take what they say with a pretty large grain of salt.

Second, yes, there is a movement called the "constitution in exile" that appears to be conservative and activist. The thrust of the group's views is to take the country back to the state of the constitution pre 1937. I.E. they want to reduce significantly Congress's power under the interstate commerce clause. Which of course, if taken to an extreme, would overturn legislation like the clean air act etc. A strict constructionist may hold the view that the commerce clause has been improperly expanded by the judiciary. However, that view alone does not mean that the judge is "activist". He would have to also hold the view that established precedent should be overturned to bring the law into line with the Constitution. As I stated before, a true strict constructionist, of the Scalia brand, will not support overturning established precedent under the doctrine of stare decisis.

I think it is unfair to try and brand Justice Brown as a supporter of the constitution in exile. I read what the alliance for justice and their associated "independent judiciary" site had to say about her and I see nothing specifically indicating that she holds the extreme "constitution in exile" view. Her decisions are more likely based on a strict reading of legislation and exercising the restraint not to extend certain tenuous decisions even further. But I would have to look carefully at her jurisprudence to know for sure. Those web sites make broad sweeping partisan statements and I don't trust them.

I find it amazing that anyone that agrees with conservative philosophy and the abortion litmus test is "conservative" and anyone that does not is "activist"- it is the same old Rush Limbaugh /1984 double speak.

The judges that fight the conservative movement represent the TRUE defenders of the constitution and the Judge Roy Moore brand of conservative- Delay type judges are there just to back up Jerry Falwell's version of America.

IF Scalia was such strict states rights kind of guy he wouldn't have voted to install Bush the first time- he would have kicked it back to the Florida supreme court to decide- your argument doesn't wash. The right says jump- Thomas, Scalia and Renquist say how high- a clear example of "activist" judges.

In fact, the entire Delay-GW movement/powergrab in regards to the court is BASED on a conservative litmus test- therefore, activist.

Ahem. From this post:


So you see Hayleyanne, even the person you believe to be a strict constructionist in fact isn't one. You were very clear in numerous debates that Scalia was something you were calling a "textualist" which I was very clear to point out is just conservative code-speak for "activist" without the negative connotations.

There is no such thing as a strict constructionist judge anymore, and I actually agree with Scalia on that point - there shouldn't be. The Constitution was not designed as an airtight legal document detailing exactly what you can and cannot do. Therefore it necessarily needs to be interpreted by someone and that interpretation is going to change with time and society. If we were to resurrect some judge from the 1800's he would not have the same interpretation that judges today do and he shouldn't it was a different time and a different reality.

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?
No, there isn't. In reality, all judges whether liberal are conservative are "activist" for their point of view, some more than others. However, the only time that the words "activist judge" gets thrown around is when conservatives disagree with a judicial decision. In that case it doesn't matter what the political position of the judge is, how he has ruled in the past, they only care that they didn't get their way.

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?

As I said above, outside of a few people here at AD there is no such thing as a strict constructionist. There certainly aren't any on the bench of the Supreme Court.

Which is more beneficial to American society and which is more harmful?
I think that history proves it is the judges of the liberal variety that are more beneficial to society. Were it not for them we might still be drinking from segregated water fountains and interracial couples could not get married. Whether or not you agree with abortion is irrelevant, the simpel fact of the matter is that Roe v. Wade has improved the health and safety of women. So instead of getting back alley abortions and using coat hangars, it is done as a clean medical procedure now.

Those are just a few of the more noteable examples, I'm sure there are many more.

edited to add a word

I agree that Scalia's overall record is consistent, but I think that dismissing his decision on Gore v Bush as a "pretty slim track record" overlooks the significance of the decision. If this inconsistency had arisen in a case involving labelling standards for apples in Georgia, I could agree, but we're talking about the most politically important decision in the history of the Supreme Court. They decided who would be President. If I may introduce some good-natured satire, your argument really does sound like, "Hey, guys, it's just one little nuclear war -- what's the big stink?"

I agree that there was a need for a speedy decision, but how does that justify inconsistency? I should think that, when pressed for time, a prudent decision-maker falls back on tried-and-true principles rather than cooking up some sort of special-case logic -- which is exactly what Scalia did.

Your suggestion that this decision was better made at the Federal level than the state level defies Scalia's own notions of federalism.

I claim that, in the Gore v Bush case, Scalia went beyond inconsistency and well into the realm of outright hypocrisy. One's principles are most clearly exposed in the big decisions, not the little ones. And in this, the biggest decision of his career, Scalia clearly showed his true colors: ruthlessly partisan.


I agree, Alliance for Justice cannot be granted full credibility. I was too lazy to dig deeper for the sources of their quotes. The fact that they placed the critical information in quotations indicates that they are willing to stake their reputation for honesty on the correctness of those quotations, so I consider their quotes to be likely trustworthy -- although not their own statements. Nevertheless, I'll need to do some more digging before I can get to the truth of this question.


I don't trust the broad sweeping statements either. I'll have to back off my claims with respect to Justice Brown until I can get some more solid evidence. As Arnold said, "I'll be back."

CJ-- I was using the term that was employed in the question for debate. I was assuming that the writer was not distinguishing between the different levels of strict constructionist. As Scalia rightly points out -- that kind of pure strict constructionist is not realistic nor is it helpful as it ignores established precedent.

Secondly, regarding the reasons for your preference of liberal activist judges:

I do not agree that all the gains of civil rights were a result of the courts. As I have said numerous times, it was the civil rights act that grounded our country. What case changed the whole drinking fountain issue anyway? or any number of things? Brown ordered desegregation of schools, which I would argue never got us to where we should be anyway as our schools are de facto segregated even now. And the Loving holding on interracial marriage was heavily influenced by the prohibition on racial discrimination inherent in 14th amendment precedent as it struck down laws that were at their heart making an assumption of white superiority. In other words, it drew heavily from the 14th amendment's genesis. So don't try to paint the courts as the end all be all and attribute the gains in the civil rights arena to them primarily. Casting them as such is unfair to those who supported this huge and important movement in our country and did the real work of bringing their case to the american public.

Is there any actual difference in the one judge who stretches interpretation to bring about change and the other who uses the strict interpretation to prevent change?

I would change the wording of the question if I had my rathers. An activist judge is a loaded term, but for my understanding let's go with a judge whose decisions change interpretations of the law (or Constitution) or set precedents.

To me a strict construction of the Constitution would be legal fundamentalism that would limit the progress of the country as much as Muslim Fundamentalism sets back social progress and economic development to live in standards of the seventh century.

A strict COnstructionist argues that the language of the Constitution alone can be the basis for action in the federal government and if it isn't in there the COnstitution has to be amended to allow for the action.

I understand the Constitution as a living document that is more than just the words that were written in 1787. It is the precedents set by the judicial, legislative, and executive branch in the years since. That doesn't make me right, but that is how I understand the Constitution (it doesn't make me wrong either)

So in my mind a strict constructionist operating to day would be affecting as much or more change as someone envisioning a broad construction of the Constitution when making decisions.

Will Strict Constitutionalists actually be able to not bias their opinions because of their conservative beliefs? How?

I think a pure strict interpretation makes it much easier to leave out bias and gray areas, but I also think it sucks out the life of our government and strict constructionists are more philosophers than practitioners of law.

Which is more beneficial to American society and which is more harmful?

Louis Brandeis was arguably the most activist judge we have had. He argued from a perspective of social justice and often won over conservative judges to his point of view.

This is too broad of a question. If a judge is ruling solely on social justice than he/she is way out of bounds. But I think a lot of good things have been done in courtrooms around this country with politics and good intent mixed in with pure legal philosophy. I would prefer my judges to rely on established case law and law and constitutional text when making decisions than to license individuals to rule based on their individual sense of right or truth or justice or the American way.

Yes...they're both wrong, but there is a difference. The one who stretches interpretation is overtly abdicating his duties where as the "constructionist" is discreetly doing it. I'm with Scalia in terms of what is the right way to "interpret" the Constitution. Textualism's the way to go.

If they have a shred of self-control and reverence for the job...yes. Realistically...no.

It really depends on the situation. Activist judges HAVE done a lot of good for the country and Constructionists a lot of bad, and vice versa; so again, it depends on the situation. If I had to pick the lesser of two evils, I'd say the activists are worse for America.

CP