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Strictly Judicious
Are strict constructionists anti-civil rights?


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Peter Kirsanow

When the Supreme Court confirmation hearings for John Roberts begin there will be, inevitably, a fair number of questions posed to him of the “when did you stop beating your wife” genus. The objective is to portray Roberts as an extremist, first by having him concede that judges who employ an originalist/textualist (and perhaps positivist) interpretive philosophy are regressive, bigoted, and close-minded, and then by asserting that Roberts himself employs such a philosophy.

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Expect Roberts to handle such questions as deftly as he did during the confirmation hearings for his nomination to the D.C. Circuit Court of Appeals. For example, Roberts was asked the following question during the Court of Appeals confirmation process: When Chief Justice Rehnquist was advising President Nixon on judicial nominations, he said that judges who are strict constructionists are generally hostile to civil-rights plaintiffs. Do you agree with Chief Justice Rehnquist’s characterization? Why or why not? How do you define strict constructionism? Would you describe yourself as a strict constructionist?

The questioner was trying to pull a fast one on Roberts by implying that Rehnquist maintains that strict constructionists are hostile to civil-rights plaintiffs. Rehnquist, in fact, said nothing of the sort. Rather, Rehnquist had advised Nixon that strict constructionists wouldn’t be as inclined as “broad constructionists” (i.e., proponents of a living Constitution) to entertain the kind of specious civil-rights theories that tend to lurk in the penumbras of the Constitution. Nothing in Rehnquist’s advice to Nixon suggested that strict constructionists are somehow anti-civil rights.

The objective of the interrogatory to Roberts was clear (and not particularly clever): Bait Roberts into acknowledging that strict constructionists are anti-civil rights by misrepresenting the position of Roberts’s former boss–someone Roberts is likely to hold in high esteem and with whom he’s inclined to agree–and then equate Roberts’s judicial philosophy to strict constructionism. And voilá! Roberts is anti-civil rights.

Before getting into Roberts’s response, pause for a moment to consider the implications of the question. If the question was, at best, a gross mischaracterization of Rehnquist’s position regarding strict constructionists vis-à-vis civil rights, it’s not unreasonable to conclude that the questioner’s goal was to equate strict constructionism with hostility towards civil rights. If strict constructionism–colloquially defined as a close adherence to the text of the Constitution–is hostile to civil rights, then the very text of the Constitution must be hostile to civil rights. Consequently, only an expansive judicial philosophy that goes beyond the plain text of the Constitution and incorporates penumbras, emanations and foreign law into one’s interpretive doctrine can fairly and justly address civil rights; and thus, a fair and just society requires both a living, breathing Constitution and justices who interpret it as such. (Understanding this progression is how judges “grow” in office.)

Roberts didn’t bite. He simply responded that whether strict constructionists are hostile to civil rights depends on the meaning of strict constructionism. If it means a judge who strictly adheres to what the Framers intended–including giving broad meaning to constitutional provisions that clearly require such–then a strict constructionist is by no means hostile to civil rights plaintiffs. Roberts stated: I believe Justice Black, for example, considered himself a strict constructionist when it came to the First Amendment. It was his famous view that when the Framers wrote in that Amendment that “Congress shall make no law,” they meant “NO LAW.” Such a view is obviously not hostile to First Amendment claims.

Roberts went on to note that whether a “strict constructionist interprets the Constitution broadly or narrowly is less important than whether a judge reads it correctly” (Emphasis added).

Underscoring the limited utility of labels, Roberts stated:

My concern with such a judge (one indifferent to interpretive evidence), however, would be that he or she was likely to get it wrong, whether that benefits or disadvantages civil rights plaintiffs in any given case (Emphasis added).

Roberts has it essentially correct. Today, it is more likely that a broad constructionist will be “hostile” to civil rights by virtue of getting it wrong. The Court’s decision in Grutter v. Bollinger finding that the Fourteenth Amendment’s admonition that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws” sanctions the use of weighty racial preferences in college admissions for 25 years is but one example.

Roberts views unduly crabbed readings and unduly broad readings of the Constitution as suffering from similar infirmities: “My judicial philosophy accordingly insists upon some rigor in ensuring that judges properly confine themselves to the adjudication of the case before them, and seek neither to legislate broadly nor to administer the law generally in deciding that case.”

Roberts’s response expresses one of the recurring themes of his judicial approach–that judges should not legislate from the bench: “That means that judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench.”

Roberts’s approach is a good one not only for civil rights, but for all manner of cases that come before the Court.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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