One man's judicial activism is another's sound interpretation

Jacob Sullum
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Posted: Jan 11, 2006 12:05 AM

The Democrats say they're worried Supreme Court nominee Samuel Alito is "a judicial activist." At first glance, that suggestion seems about as plausible as New York Sen. Charles Schumer's description of the mild-mannered 3rd Circuit judge as "strident."

 Once you realize "activist" has become a bipartisan epithet for judges who reach conclusions different from one's own, the label makes sense, although it's not very informative. Since one man's judicial activism is another's sound interpretation, "poopyhead" would do just as well.

 Properly speaking, a judicial activist is a judge who does not apply the Constitution so much as rewrite it to fit his own policy preferences. For conservatives, Roe v. Wade was the height of judicial activism, overriding state laws restricting abortion based on a constitutional pretext so thin it vanishes when held to the light.

 For the Democrats, voting to overturn Roe v. Wade, as they fear Alito is apt to do, would be judicial activism. They also consider any suggestion of limits on congressional power, such as Alito's 1996 dissent questioning the constitutional basis for a federal ban on machine guns, to be judicial activism.

 While the Democrats (along with quite a few Republicans) are offended by the idea that Congress should exercise only those powers granted by the Constitution, they insist that the president do so (when the president is a Republican, at least). "Is there any limit to executive power and authority that this nominee will recognize?" asks Sen. Ted Kennedy, D-Mass.

 Although Kennedy's concern about constitutional limits is selective, the question is timely, given our current president's apparent belief that the Constitution authorizes him to use whatever means he considers necessary to fight terrorism, including torture, warrantless wiretaps and unilateral, indefinite detention of Americans. There's no telling what else President Bush or his successors will decide to do in the name of the never-ending war on terrorism, but we can be pretty sure they will condemn as judicial activism any attempt by judges to stop them from doing it.

 Alito's critics cite his record as a Justice Department lawyer during the Reagan administration as evidence that he is not likely to be one of those judges. Back then Alito expressed sympathy for the view that an attorney general who orders warrantless wiretaps for national security reasons should not be held personally liable, and he advocated the use of  bill-signing statements to create a record of the president's take on legislation -- a tactic Bush recently used to indicate he reserves the right to disobey a congressional ban on torture if he thinks national security requires it.

 Alito's defenders caution that his service as an advocate for the president is not a sound basis for predicting his performance as a justice, and history suggests they may be right. Robert H. Jackson, who vigorously defended the president's prerogatives while serving as Franklin Roosevelt's attorney general, was considerably more skeptical of executive power after he was appointed to the Supreme Court. He concurred in the 1952 decision that rejected Harry Truman's seizure of steel mills during the Korean War, for instance, even though that move was similar to Roosevelt's seizures of factories during World War II.

 A more recent example is Antonin Scalia, one of the justices President Bush said he had in mind when he picked Alito. Scalia, who ran the Justice Department's Office of Legal Counsel during the Ford administration, was a well-known advocate of a strong executive, and as a justice he was the lone dissenter from the Supreme Court's 1988 decision upholding the now-defunct independent counsel statute (which Alito also criticized as an unconstitutional impingement on presidential authority).

 Yet when it came to Bush's detention of a U.S. citizen as an "enemy combatant," Scalia staked out the strongest position against the administration, saying the Constitution required it to try the prisoner or let him go. If that's what judicial activism looks like, we need more of it.