Jacob Sullum

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.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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