More on the Judiciary

Restraint and Constructionism


This blog originally appeared on Feb. 1, 2009 on http://hippocampusgovernment.blogspot.com/ and is reprinted here with the permission of Hippocampus.org. For more information and to see the hyperlinks see the original and visit my Hippocampus Government blog.


Most of us agree that President Obama will be faced with two crucial decisions in his administration...the selection of two seats for the Supreme Court. I was just a lad when Justice John Paul Stevens was tapped for the Court. If you have forgotten, Stevens was President Gerald Ford's appointment. At 89, Justice Stevens will most likely leave the Court during the Democratic administration giving President Obama his first opportunity to appoint a Court seat.

Justice Ruth Bader Ginsburg could possibly also decide to leave the Court during the reign of Mr. Obama. While a youngster in Court years, her health combined with age (76) could result in an early retirement. Ginsburg also misses her friend and female colleague on the Court Sandra Day O'Connor and stands alone on many women's issues. Justice Ginsburg most probably would desire to see her replacement be a female and would most likely find Mr. Obama's choices more in line with her own ideologies and views of the Court. Neither Stevens or Ginsburg would want to risk their replacements in the hands of a future conservative GOP administration. I'm betting on their retirements in the next couple of Court terms.

So what are we teaching the students about the selection process that President Obama will utilize to narrow his candidates and make these critical appointments? One of the places to help us and the students gain insight into this process are the confirmation hearings of Justice Samuel Alito. The Alito confirmation was a textbook for the process! The discussions on the topic of judicial activism versus judical restaint were deep and insightful. Justice Alito, of course, professed a disdain for activism, rejecting the concept of the Court as a social engineer. His comments demonstrated the GOP attitude for restraint and conservative case determination.

The topic of constructionism is also found in these hearings. Just how should the Constitution be viewed? Is it a dynamic document bendable with the winds of social, political, and economic change? Or is the Constitution Hammurabi Law; carved in stone, unchangeable and unflappable, setting principles that endure unchanged with time's ravages?

The Senate's grilling of Justice Alito, and Chief Justice Roberts before him, should give President Obama a clear picture of what to expect when his conformation battles begin. He will need to vet his selections carefully and while many of us foresee Obama candidates as activists and loose constructionist, those characteristics will need to be tempered to pass GOP Senate scrutiny. Without a filibuster blocking 60 votes, the process will be anything but automatic for Mr. Obama and his candidates.

Advanced Placement Exams have been interested in this process in the past years (for example, 2000 Free Response Question Number Two). Since College Board has a tendency to ask questions a year or two following the front page stories, and since we haven't seen a selection process question in almost a decade, it is a good bet one is coming sometime in the near future. I'm not in the crystal ball business, but I think you have to agree we don't want to ignore this topic with the students this year. One very good source for discussions on Court issues is Peter Woll's Reader. I will have my students read several of the articles for class discussion. We will also view the video "Gideon's Trumpet" intentionally watching for Court ideology.

Last week I indicated that this week would be all about the current Court and its personalities, but in my reading and research I got off track and on this subject of judicial ideology. I had intended on covering this anyway so I moved the discussion forward while it was fresh on my mind. I promise next week to discuss the current Court and look briefly at the historic Courts and Justices we should not ignore. Until then...