Column: A justice on our side

By Craig Colbrook

I should really stop being surprised by President Bush’s complete indifference to the concerns of college students, but the nomination of Sam Alito to the Supreme Court still stings. I’ve said before that the court’s decisions have major effects on all of us, as they talk about from privacy and discrimination to school funding and library books in the near future. But Bush doesn’t care about any of that; he only cares about his fake distinction between “activist” judges and “strict constructionists.”

In theory, “strict constructionists” practice judicial restraint. They give Congress and the President of lot of leeway, and they supposedly care only about the exact text of the Constitution or the obvious intentions of the Founding Fathers. “Activist” judges, on the other hand, couldn’t care less about this stuff and judge solely on contemporary social fads or their own sense of morals.

Of course, reality is never so clearly cut, and there’s a lot of crossover between the two camps. Liberal justices like Earl Warren and Bill Brennan were widely considered activists by even their supporters, and they certainly pushed the boundaries of judicial philosophy.

But they also constantly referenced the founding fathers and cited exact text. They even based some of their opinions on what was considered important when the Constitution was written.

Conservative icons, meanwhile, aren’t any more interested in judicial restraint. Justices Antonin Scalia and Clarence Thomas are held up as the models of modern strict constructionists, and they do hold a narrow view of the Constitution.

However, they are also more than happy to overrule Congress. Thomas, in fact, does it the most of any justice (65 percent of the time, according to the New York Times). Scalia only gets a bronze medal, but he shouldn’t feel bad. It’s an honor just to compete, after all.

This is where Alito stands. In Chittsler vs. Department of Economic and Community Development (2000), he voted to invalidate the Family and Medical Leave Act, a law passed by Congress and signed by the President. In Doe v. Groody (2004), he gave police a lot more power to conduct strip searches, a move that would have scared the authors of the Fourth Amendment silly.

And there’s a good chance that Alito is a sure vote to overrule Roe v. Wade (1973). That’s certainly his choice, but going against precedent hardly qualifies as an act of judicial restraint.

So, everyone’s a strict constructionist, and everyone, including darling Sam, is an activist sometimes. The only real distinction, as far as I can tell, is that activists let Americans do things that make Bush feel icky, while the strict constructionists at least feel icky about the same things.

But a clear definition of the terms isn’t necessary, because they’re only code words. “Strict constructionist” is Bush’s way of telling his friends, “Don’t worry, this guy agrees with us on abortion and gay marriage.” And code words are fine when you’re trying to get into the tree fort, but in the Supreme Court, they only confuse and distract from the important issues. This is especially true when you consider that the so-called “activists” are also the ones who have traditionally looked out for students. It was guys like Warren and Brennan, after all, who found a right of privacy and ended segregation.

Guys like Scalia and Thomas have traditionally stood up for the rights of corporations. Now, that isn’t wrong, exactly, but come on. Don’t the Enrons of the world have enough power to take care of themselves?

Even if they don’t, they already have two justices on their side, so they don’t need one more. And we students certainly don’t need an anti-privacy, anti-worker, pro-Patriot Act conservative like Alito on the court. We need someone who can rise above the petty and artificial divisions that Bush has placed on us. If Alito isn’t that man, I hope there are 51 senators who realize it.

Craig Colbrook is a senior in LAS. His column appears every Friday. He can be reached at [email protected]