On the October 31 edition of NBC's Today, co-host Katie Couric baselessly suggested that newly named Supreme Court nominee Samuel A. Alito Jr. is “a strict constructionist” who “will interpret the Constitution literally.” Couric's comment marked at least the second time that she has parroted rhetoric conservatives use to promote President Bush's judicial nominees. They frequently create a false dichotomy between strict constructionists, whom they purport to embrace, and “judicial activists,” whom they characterize as a blight on the judicial system. But while Couric offered no support for her assessment that Alito is a strict constructionist, by one measure -- the likelihood to restrict Congress' ability to enact legislation -- he has been described as a judicial activist.

As a study by Yale University law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder shows, those justices most frequently labeled proponents of “strict constructionism” are also among the Supreme Court's biggest practitioners of one brand of judicial activism -- the tendency to usurp congressional power by striking down statutes passed by Congress. While Gewirtz and Golder's analysis concerned Supreme Court justices and did not provide an analysis of Alito's record on striking down congressional legislation, George Washington University professor and New Republic legal affairs editor Jeffrey Rosen -- who has vocally supported conservative judges such as current Chief Justice John G. Roberts Jr. and 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig -- similarly focused on Alito's efforts to restrict congressional authority in determining that Alito is a judicial “activist.”

In a November 22, 2004, New Republic column, Rosen placed the “eight candidates on Bush's short list” of purported “strict constructionists” into two categories: “conservative activists,” whom Rosen deemed “troubling,” and “principled conservatives,” who Rosen argued “could be embraced by Democrats with cautious optimism.” Rosen defined “conservative activists” as those “determined to use the courts to strike at the heart of the regulatory state” and included Alito in that group, citing Alito's “troubling” view on the limited scope of congressional authority under the Commerce Clause as described in his “dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns”:

What should be far more troubling to Senate Democrats [than Alito's support for a spousal notification law restricting abortion in the case Planned Parenthood v. Casey], however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce -- therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring “Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.” His lack of deference to Congress is unsettling.

The majority opinion of the 3rd U.S. Circuit Court of Appeals in the case United States v. Rybar also criticized Alito's dissent as advocating the usurpation of congressional authority. Of Alito's view that Congress ought to be required to prove a link between regulation and interstate commerce in such cases, 3rd Circuit Chief Justice Dolores K. Sloviter wrote that "[w]e know of no authority to support such a demand on Congress," writing that such a demand would require “Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.”

Rosen's criticism of Alito stands in contrast with his strong support for some conservative judges. For example, during the Roberts nomination, Rosen declared that Democrats should “vote to confirm Roberts as chief justice with gratitude and relief.” More recently, in an October 30 New York Times op-ed, Rosen promoted Luttig's purported support for the “superprecedent” of Roe v. Wade, the landmark decision protecting a right to abortion, by, according to law blogger Ann Althouse, mischaracterizing a 2000 opinion Luttig delivered in striking down a Virginia ban on terminating later-term pregnancies.

Rosen is not the only lawyer to label Alito an “activist.” For example, as U.S. News & World Report noted on July 19, a criminal defense lawyer who has tried cases before Alito cited the judge's narrow views on the scope of prisoner and criminal rights as evidence that Alito is “an activist conservatist judge” who “has looked to be creative in his conservatism”:

Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as “an activist conservatist judge” who is tough on crime and narrowly construes prisoners' and criminals' rights. “He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait,” Lustberg says.

This is not the first time Couric has suggested a false dichotomy between strict constructionists and judicial activists, as Media Matters for America has documented. In describing a July NBC News/Wall Street Journal poll question that asked whether Bush should appoint a judge “who will give greater consideration to the original intentions of the authors of the Constitution” or one that “will give greater consideration to changing times and current realities in applying the principles of the Constitution,” Couric summarized the second choice as “a judicial activist.”

From the October 31 edition of NBC's Today:

KELLY O'DONNELL (NBC White House correspondent): This man has been described by those close to the process as someone with a very different judicial temperament than [Justice] Antonin Scalia. So some close to the process take issue with that characterization that he is a Scalito-lite. This is a strange thing to say, given that [George Washington University law professor Jonathan] Turley later places Alito to the right of Scalia, but only by a hair:

COURIC: So he is a strict constructionist in every sense of the word, and I know that President Bush was -- or is looking for a conservative jurist. So he fits the bill, in terms of someone who will interpret the Constitution literally and may disagree with the right to privacy, which is the foundation of Roe v. Wade.

TURLEY: Oh, absolutely. And there will be no one to the right of Sam Alito on this court. I mean, this is a pretty hard-core fellow on --

COURIC: Not even Antonin Scalia?

TURLEY: They'll have to make a race for the right, but I think it'll be by a nose if at all.