After President Bush announced his nomination of John G. Roberts Jr. for the Supreme Court, numerous media outlets repeated conservatives' characterization of him as a "strict constructionist." But those in the media who repeated this description of him neither questioned it nor provided any evidence to support it. In repeating the claim without comment, they echoed conservatives' misleading dichotomy between "strict constructionists" and "judicial activists."
In the weeks leading up to Bush's July 19 nomination, news outlets repeated Bush's claim that he wants to nominate a "strict constructionist" to the Supreme Court -- which he defines as someone "who will strictly interpret the Constitution and not use the bench to legislate from." Some media outlets, such as The Washington Post and NBC's Today, echoed conservatives' characterization of a strict constructionist as the opposite of a judicial activist, a judge who legislates from the bench.
But in characterizing Roberts as a "strict constructionist," conservatives have not provided a substantive definition of the term, nor provided a justification for their suggestion that he is the opposite of a judicial activist.
A recent study by Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder offers one standard by which judicial activism may be measured; by that standard, those Supreme Court justices often labeled strict constructionists -- or, more accurately, "originalists" or "textualists," who purport to discern and apply the true original meaning of constitutional provisions -- are the real judicial activists. Gewirtz and Golder defined the term as a judge with a propensity to strike down statutes passed by Congress. They found that Justice Clarence Thomas was the most likely to strike down federal laws, while justices Ruth Bader Ginsburg and Stephen Breyer -- the only two current justices appointed by a Democratic president -- were the least likely to do so.
A July 20 New York Times editorial cited a Roberts dissent in one case as evidence that he may, in fact, be a judicial activist of the sort the Gewirtz/Golder study identified, one who purports to adhere closely to the text of the Constitution while voting repeatedly to strip Congress of the authority to pass legislation in a number of different areas: "There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional."
Even Sen. Arlen Specter (R-PA), chairman of the Senate Judiciary Committee, decried the Supreme Court's activism of late in usurping congressional authority and expressed hope that Bush would nominate "somebody" who would be "a swing vote."
From the July 17 edition of Fox Broadcasting Co.'s Fox News Sunday:
SPECTER: I think that the way our government has evolved, the Supreme Court has taken too much power. They have declared too many acts of Congress unconstitutional because, as the court says, Congress hasn't thought it through. Well, who is the court, really, in our system of government to say that they can think it through but the Congress can't think it through? So that judicial restraint is very important.
But the president is in his second term. Many people contributed to his election. But now I think he stands above the fray, and he stands in a position where he has to put a person on not where the president would be beholden to any group, no matter how much they contributed to his election, but something in the national interest.
And when you have these very delicate questions, it's helpful to the country to have somebody who is a swing vote, which maintains the balance
Specter made those comments before the Roberts nomination, but the Times warned that Roberts might not be a "swing vote" in the mold of retiring Justice Sandra Day O'Connor, who happens to occupy the middle position on the Gewirtz/Golder activist ranking.
The following are examples of reporters and news anchors who described Roberts as a strict constructionist but failed to provide a meaningful definition of the term or offer specific evidence supporting the claim:
MAJOR GARRETT (Fox News general assignment correspondent): John Roberts is regarded universally not only as a brilliant legal intellect, but as a straight-down-the-line strict constructionist and, having clerked for Justice William Rehnquist before he became the chief justice of the Supreme Court, is also a strong indicator that conservatives consider him not only a solid choice but a very, very good choice.
From the July 20 edition of CNN's American Morning, during an interview of Clifford May, former Republican National Committee communications director and president of the Foundation for the Defense of Democracies, by host Miles O'Brien:
O'BRIEN: He has argued more cases before the Supreme Court, more than any sitting justice currently on the bench ever did. He is considered a strict constructionist -- that means he interprets the constitution literally. He's clerked for William Rehnquist, at the time not the chief.
MAY: This guy appears to be an originalist. Somebody who doesn't believe it's his job to make the law or to make policy. It's his job to interpret the laws that exist, the Constitution, which is a contract between the American people and its government.
O'BRIEN: And I suppose the American people would say, great, we want somebody who has a strict interpretation of the Constitution.
From a July 20 New York Daily News article by Thomas DeFrank and Kenneth Bazinet:
Bush strategists believe Roberts' intellectual firepower and personal charm will trump liberal criticism of his strict-constructionist credentials.