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In the run-up to the January, 2006, Senate hearings for United States Supreme Court nominee Samuel Alito, both Republicans and Democrats are trading long-standing philosophic principles for perceived partisan advantage. In a fascinating bait and switch, both parties are using the other party’s principles as leverage for their view of the 1973 Roe v. Wade abortion case, which will undoubtedly play a central role in the hearings.

While conservatives typically favor judicial restraint, liberals generally encourage judicial activism. Conservatives, more often than liberals, also tend to appreciate stare decisis—a respect for legal precedent.

Judicial restraint is an approach to jurisprudence that suggests the Constitution and the law should not be altered at the whims of judges responding the winds of current culture. Judges and justices, so the theory goes, should let legislatures and the Congress make the laws, while robed attorneys behind the bench simply interpret the law.

Judicial activism is an approach to jurisprudence that suggests the Constitution is a culturally and historically defined document that, though foundational, should nevertheless be altered by law-making judges and justices when the needs of the time demand it. While legislatures and the Congress make laws too, so this theory goes, they are frequently gridlocked by political wrangling. Only the courts can break through on certain issues too hot for elected officials to handle.

Conservatives supporting Judge Alito’s nomination are now arguing for judicial activism with a distinct lack of concern for legal precedent. Why? Because many of them want Roe v. Wade overturned. Their pro-life perspective trumps their traditional inclination to encourage justices to proceed slowly with great respect for the law as it stands. In this instance, via Alito, conservatives want to have their day in court.

Liberals wanting to thwart Judge Alito’s appointment to the high court now sound like conservatives, arguing articulately for judicial restraint and in favor of both legal precedent and the “right to privacy” they believe precedent has established. Why? Because these are code words for arguments intended to “protect a woman’s right to choose. Liberals, via someone other than Alito, want to preserve what they consider a basic civil right.

This is not the first time this principle switch has taken place. Conservatives who tend to favor states rights over federal empowerment led the charge to involve Congress in the tragic Terri Schaivo case last year. In what became the concluding act of the 2000 presidential election conservatives on the United States Supreme Court, who also tend to favor states rights, directly intervened in Bush v. Gore.

I’m not saying either side is necessarily wrong for switching principles in these instances. I am only pointing out that political principles are sometimes jettisoned in the heat of battle. That fact alone should make us want to be eternally vigilant, for you never know which principle might be considered expendable, even though some principles are clearly more important than others. And this is exactly what we want justices to be thinking about.


© Rex M. Rogers - All Rights Reserved, 2006

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