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Why The “Strict Constructionist” Crowd Makes Me Really Nervous


It feels like the left has already thrown in the towel on fighting Judge John Robert’s nomination. Everyone is so busy conceding that it could have been much worse, we’ve already forgotten the idea that it could have been much better.

Roberts’ nomination reminds us why more of us need to question the alleged virtue of a having a “strict constructionist” on the Supreme Court.

What would America look like if the “strict constructionists” had their way? Let’s look at the founder’s intent and see what a “strict constructionist” America actually looks like.

In 1787, women and men who didn’t own land couldn’t vote. African-Americans had no rights. The Constitution doesn’t address any sort of environmental rights.

In 1886, the “strict constructionists” on the Supreme Court in Plessy v. Ferguson declared that “separate but equal” didn’t violate the Constitution’s equal protection clause.

That was the wrong decision then and it remained the wrong decision until it was finally overturned by Brown v. The Board of Education in 1954 by “activist judges”.

In 1965, the Supreme Court finally legalized birth control for married couples in Griswold v. Connecticut. The court ruled that Connecticut's law prohibiting birth control for married couples violated a newly defined right of marital privacy.

So in a “strict constructionist” America, there’s no birth control for married couples because we’d have no Griswold decision.

Over his career, Roberts has been hostile to the rights of women and minorities. While working for President’s Reagan and Bush, Roberts was consistently opposed to civil rights policies.

In Judge Roberts’ America, our public schools would have been “resegregated” under a scheme he fought for when he advised the Justice Department about their dispute with the US Commission on Civil Rights.

Roberts advocated changing the burden of proof in Voting Rights Act cases that would have made it virtually impossible for plaintiffs to ever prove discrimination.

In two years, the Voting Rights Act will be back on the table and it could find its way to the Supreme Court. As a well-established “states rights” advocate, would Roberts be hostile its renewal?

So, before we concede Robert’s confirmation, let’s hold the “strict constructionist” crowd more accountable for their vision of America.

We need to ask what conservatives really mean when they repeatedly assert that the only appropriate jurists are those who don’t “legislate” from the bench.

If barring so-called “activist” judges from the bench means I can’t vote, I can’t use birth control and embracing a “separate but equal” scheme, we really need to re-think what role the Supreme Court Jurists should play in American life.