TCS Daily

The Anti-Activist Nomination

By Uriah Kriegel - July 21, 2005 12:00 AM

President Bush's pick for his first Supreme Court nomination is a genuine compromise between the two crucial options he faced: nominating a moderate/ambiguous conservative and nominating an immoderate/unambiguous conservative. In the words of William Kristol, Judge Roberts is a solid conservative, but not a movement conservative.

The nomination has taken by surprise poised critics on both sides. It leaves them with much less to work with than they may have anticipated. We've been here before. As with his decision on stem cell research, the president managed to strike an unexpected middle path that blunts criticism on both sides, at least right off the gate.

Also in line with tradition, Bush selected someone whose credentials emanate primarily from the private sector. John Roberts made a name for himself as one of the best legal minds of his generation while facing the court, not sitting on it. This too is a mark of our president's sensibilities.

But what is the long-term, big-picture significance of Roberts' selection to the Supreme Court?

It will not have much impact on life issues. Much has been made, on one side, of his 1991 Amicus Brief footnote to the effect that Roe was wrongly decided, and on the other side, of his 2001 Senate Confirmation statement that he considers Roe the settled law of the land. Both considerations carry no weight. In 1991, Roberts represented his employer, Bush 41, not himself; as a Supreme Court justice, Roberts would be his own representative. In 2001, Roberts was being confirmed to a court that has no standing to challenge a Supreme Court precedent; as Supreme Court justice, it would be perfectly legitimate for him to unsettle the law of the land. The truth is we don't know how Roberts would vote if Roe were to be reconsidered. (That's a good thing, by the way.) However, the whole issue is a red herring: in that eventuality Justice Kennedy would join the bench liberals to uphold Roe anyway.

The main effect Roberts will have on the Court is to steer it away from any form of judicial activism. Although conservatives have been more vocal about left-leaning judicial activism, there is no shortage of right-wing activism flowing from the judiciary.

For example, some liberals have charged, not unreasonably, that inserting the words "under God" into the Pledge of Allegiance, as Congress did in 1953, was unconstitutional under the establishment clause of the First Amendment. Whether or not you agree with this, the point is that there can be such a thing as conservative judicial activism. There is no contradiction in terms here. A movement conservative like Luttig or Edith Jones might very well engage in such conservative activism. Not Roberts.

There are two confusions surrounding the issue of activism and "textualism" that may make it difficult to appreciate this.

First, the term "activist" is used ambiguously. It is sometimes applied to judges who decide in evident contradiction of the letter of the Constitution (often in the name of its "spirit"), but sometimes to judges who decide in a way that flaunts the manifest will of the people. But the two are different. When the letter of the Constitution and the will of the people diverge, judges will necessarily decide in a way that makes them "activists" in one of the two senses.

Thus a strict textualist might argue that given the letter of the Constitution, the phrase "under God" renders the Pledge of Allegiance unconstitutional, even though this is a politically ultra-liberal position. My point is that there is no necessary connection between political conservatism and judicial conservatism. One could, in principle and within limits, be a judicial conservative -- in the sense of a textualist -- and a political liberal at the same time.

A second, related confusion is taking textualism to claim that there is only one legitimate interpretation of the Constitution. This latter claim would follow from textualism only on the assumption that there is only one legitimate reading of a text. But this assumption is not part of textualism proper. It is a theory in literary criticism, and an implausible one at that.

Consider Justice Scalia's statement in his 1997 book A Matter of Interpretation that "a text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably..." There may be only one strict reading of a given text, but there is surely more than one reasonable reading. So a textualist could, in principle and within limits, allow both a politically liberal and a politically conservative reading of the Constitution's text. My point, again, is that the adoption of a textualist stance does not all by itself support the nomination of a strong conservative.

The selection of John Roberts to the Supreme Court represents, first and foremost, a step in the genuinely anti-activist direction. With it, President Bush made good on his promise to nominate a conservative to the Supreme Court. But the conservative he nominated is first a judicial conservative and only secondarily a political conservative.

The author teaches philosophy at the University of Arizona and is a TCS contributing writer.



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