Column: Back to the text

By Elie Dvorin

The withdrawal of the Harriet Miers nomination for consideration to the Supreme Court was a breath of fresh air for conservatives everywhere – not necessarily political conservatives, but judicial conservatives. President George W. Bush’s inability to gauge the political fallout of the nomination is now forgiven. His shameful display of cronyism is now forgotten. And the major mistake of appointing somebody without a judicially conservative track record has been swept under the rug. Here comes the mulligan.

At a time when judicial activism is running rampant throughout the entire federal judiciary and judges are confusing themselves for legislators, a judicially restrained justice on the Supreme Court is a necessity. Hopefully, this time Bush will open up the short list of candidates to include more than just women and end up with a qualified nominee whose judicial philosophy is rooted in strict constructionism or original intent. Bush promised a nominee in the mold of Scalia or Thomas and we got a nominee in the mold of God knows what.

Justices that subscribe to original interpretation or strict constructionism understand their place in the federal judiciary. They recognize that the Supreme Court is inherently an undemocratic institution – a group of nine unelected political appointees that have significant power over legislation and public policy. They allow the elected legislature to make the policies and simply determine the constitutionality of such measures. Justices that don’t subscribe to the aforementioned judicial philosophies simply enforce their political agendas on the American people because they recognize the insular nature of the Court. In short, their life tenures make them immune to public opinion.

Opponents of a strict constitutional interpretation argue that it stifles social progress because it reflects a time when the founding fathers didn’t value social equality. That criticism would be more valid if it weren’t for the equal protection amendment and years of precedent set by legislative equality for gender, race and religion. Strict constructionists put a high premium on judicial precedent, as evidence by the doctrine of stare decisis, because they respect codified law.

The fact of the matter is that policies advocating social equality have been written into law primarily because of the legislatures – state and federal. By granting deference to the legislatures, strict constructionists are protecting the will of the people and, in doing so, are protecting social equality.

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On the other hand, those justices who look to use the Court as a vehicle to advance their politics undermine the role of our legislators and disrespect the intended role of the Court. These are the people that should be the target of criticism; their personal views are the basis for their judicial decisions. They have no concrete philosophy that harnesses their opinions – and therefore they act no different than legislators. At least legislators need to worry about re-election when making policy.

A perfect example of non-constructionists trampling on the Constitution is evidenced by the Court’s decision in Roper v. Simmons, in which the majority opinion cited international law in striking down the death penalty for juveniles. Scalia’s furious attack on the decision was well warranted. Why not just legalize marijuana and hash brownies like they do in Amsterdam or commit genocide because the Hutu extremist leaders in Rwanda did it, too? This reasoning is absurd and shows the idiocy that can ensue when justices don’t respect the text of our Constitution.

Whoever Bush selects for the Court must have a well-demonstrated judicially conservative approach and a narrowly tailored view to constitutional interpretation. There’s too much on the line for conservatives to trust Bush on some stealth candidate about whom nobody knows anything about. Nothing less than a justice in the mold of Scalia will be tolerated and Bush knows conservatives will derail the nomination again if he doesn’t pull through. The stakes are too high for another justice with no judicial restraint to make the Supreme Court his stomping grounds for the next thirty years.

Elie Dvorin is a senior in LAS. His column appears every Monday. He can be reached at [email protected].