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The 'Judicial Philosophy' Dodge

Why opposing 'activist judges' isn't as straightforward as you'd think.

Listening recently to my local Christian radio station, I heard a prominent evangelist calling for the appointment of Supreme Court justices who will not "legislate from the bench." We need to be certain, said the commentator, that potential justices hold the right judicial philosophy. I assumed he meant that there is a biblically correct way of looking at the role of the courts, and that judicial legislation is not it.

Although I, too, would much prefer judges (and justices) who understand the difference between adjudication and legislation, I fear the distinction is not always as clear as we might think. Even the term "judicial philosophy," freely tossed around in political conversation, is slippery.

Consider a public opinion survey I saw over the summer, purportedly on the subject of judicial philosophy. It asked respondents whether they preferred justices who would follow the "original understanding" of the Constitution, or justices who believed the meaning of the text should "change over time." May I suggest, with the greatest of respect for the profession of surveying public opinion, that the dichotomy is not merely nonsense, but nonsense on stilts?

People often say, confusedly, that liberals want a Constitution that can change in meaning, while conservatives prefer to stick with original intent. Really? Suppose there is a justice (who believes the Constitution changes over time) who holds that, back in the old days, an unborn child was not a person within the meaning of the Fourteenth Amendment to the Constitution, and therefore enjoyed no right to life. Now, because of the upsurge in abortions, suppose this justice decides it is time to extend constitutional protection to the unborn.

Similarly, imagine a justice (who ...

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Civil Reactions
Stephen Carter is the William Nelson Cromwell Professor of Law at Yale University. He is the author of The Impeachment of Abraham Lincoln (2012), The Violence of Peace, The Emperor of Ocean Park, and many other books. His column, "Civil Reactions," ran from 2001 until 2007.
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The 'Judicial Philosophy' Dodge
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