Strict Constructionist vs. Judicial Activist

The Senate Judiciary Committee Hearings for Supreme Court Nominee Samuel Alito are fast approaching, and the process could be contentious as forces from the left and right appear to be polarized on this nominee. Conservative supporters of Judge Alito will saturate the airwaves with the terms “Strict Constructionist” and “Judicial Activist”, and will assert that Alito is the former – and presumably, that’s good for the American people.

What do these impressive sounding terms mean? And, what do these terms REALLY mean in the context of their usage and why do conservatives want you to accept these terms blindly?

Strict Constructionist
Term Definition: Someone who interprets the Constitution literally. (As an aside, do we really want someone who interprets the Constitution literally? Doesn’t all law have to be interpreted with the perspective of modern society? The Founding Fathers of this country could never have foreseen the rigors of modern society, so how could we expect them to design a framework to legislate it completely?)
Conservative Usage of the term: Someone who agrees with the conservative viewpoint on political and social issues (e.g., abortion).

Judicial Activist
Term Definition: A judge who legislates from the bench.
Conservative Usage of the term: Someone who disagrees with the conservative viewpoint on political and social issues (e.g., Terry Schiavo).

Looking at the above definitions, it’s no surprise that Samuel Alito is being cast as a Strict Constructionist. Of course, the definitions of these terms are sufficiently vague enough to make it nearly impossible to determine whether anyone belongs in one camp versus the other. Is there a prescribed method for reviewing a judge’s record and determining whether he is a Strict Constructionist or Judicial Activist? In my opinion, the answer to that question is “No” and that’s deliberate.

Conservative supporters of Judge Alito are not using these terms for their definitions, but as labels. The more Samuel Alito is referred to as a Strict Constructionist, the more he will become the symbol of conservatism on Constitutional issues, regardless of his record. Republicans want the label to stick because labels are stronger than facts in American society today. Already, the mainstream media is parroting the view that Alito is a Strict Constructionist so the process is beginning to take hold. Once the label is established, the average American won’t bother to research Judge Alito’s record on the issues and that’s exactly what conservatives want to happen. In today’s fast food styled world, a quick label from the mainstream media is all the average American citizen needs to make a decision, and that is sad.

Liberals have been slow to realize this and still attempt to fight labels with facts with the belief that rational discourse will prevail. Unfortunately, it often takes years for the rational perspective to supplant the label. With that reality in mind, perhaps Democrats should turn the tables and label this nominee as a Judicial Activist. Media Matters for America compiled the Top Alito Myths and Falsehoods, and in item #3, put forth a reasonable argument for branding Samuel Alito as a Judicial Activist. I doubt we’ll see the Democrats adopting this strategy, but wouldn’t it be fun to see TV pundits from each side yelling “Strict Constructionist”, “NO, Judicial Activist”, “NO, Strict Constructionist”, “NO, Judicial Activist” …

Of course, the best way to determine your level of support for Judge Alito is to research his published opinions and views on the topics that are important to you. There’s a famous adage in sports and I think it applies here: Don’t believe the hype!