I didn’t have much time for TV news today, but it took less than half of the twenty seconds I devoted to Wolf Blitzer to hear a commentator bring up the boogeyman of the virtues of Supreme Court justices who are strict constructionists as against the loose cannons who are (empathetic) judicial activists. I wonder if someone can explain to me what a strict constructionist is? I know some conservatives claim that activist judges are those who legislate from the bench. Help me understand how any Supreme Court decision is not a form of legislation insofar as the very act of interpreting various laws and lower court decisions in the context of the Constitution must always turn the law, at least in some small way, to a meaning it did not have before.
Now and then I hear someone bring up the issue of original intent, which is patently ridiculous on the face of it. However brilliant our founding fathers were, their intent had to be limited, and was limited, by their own time and culture. As I recall from my undergraduate courses, that matter was decided in Marbury vs. Madison way back in 1803. So why is that old hoax still be floated around?
I’m really looking forward to seeing if the current GOP leadership can come up with something new and creative this time, but my guess is that they are in mortal fear that we may get a justice who is actually committed to upholding the highest values of our nation as expressed in our Constitution.