Listening recently to my local Christian radio station, I heard a prominent evangelist calling for the appointment of Supreme Court justices who will not "legislate from the bench." We need to be certain, said the commentator, that potential justices hold the right judicial philosophy. I assumed he meant that there is a biblically correct way of looking at the role of the courts, and that judicial legislation is not it.

Although I, too, would much prefer judges (and justices) who understand the difference between adjudication and legislation, I fear the distinction is not always as clear as we might think. Even the term "judicial philosophy," freely tossed around in political conversation, is slippery.

Consider a public opinion survey I saw over the summer, purportedly on the subject of judicial philosophy. It asked respondents whether they preferred justices who would follow the "original understanding" of the Constitution, or justices who believed the meaning of the text should "change over time." May I suggest, with the greatest of respect for the profession of surveying public opinion, that the dichotomy is not merely nonsense, but nonsense on stilts?

People often say, confusedly, that liberals want a Constitution that can change in meaning, while conservatives prefer to stick with original intent. Really? Suppose there is a justice (who believes the Constitution changes over time) who holds that, back in the old days, an unborn child was not a person within the meaning of the Fourteenth Amendment to the Constitution, and therefore enjoyed no right to life. Now, because of the upsurge in abortions, suppose this justice decides it is time to extend constitutional protection to the unborn.

Similarly, imagine a justice (who believes in original intent) who notices that Article I of the Constitution provides for Congress only the power to create and regulate "land and naval forces." By that justice's reasoning, the Air Force, undreamed of by the Constitution's framers, is unconstitutional. (In 1947, worried about just this possibility, some members of Congress introduced a constitutional amendment to remedy the perceived deficiency.)

Catchy phrases, beloved though they may be by the media and politicians, tell us little, if anything, about judicial philosophy. A judge's background often tells us even less. Despite common assertions to the contrary, identity is not philosophy.

After President Bush nominated Samuel Alito, Eleanor Smeal, head of the Feminist Majority Foundation, complained that since the Supreme Court already included four Catholics, people of other religions and nonbelievers would be underrepresented. Advocates such as Smeal seem to believe that if we know your background, we know your votes: black justices would vote the black way, white justices the white way, and so forth.

Article continues below

These days, conversation about judicial philosophy is really code language for something else. In the current climate, when public figures refer to judicial activism, we are usually meant to think of Roe v. Wade.

And, if by legislating from the bench we mean handing down opinions that seem to lack a clear mooring in precedent or text or, really, anything other than the will of the judges themselves, Roe certainly fits the bill.

Yet it is not only liberals who hand down results that seem inexplicable except as exercises of arbitrary will. As I have mentioned in these pages before, the Supreme Court's 2000 decision in Bush v. Gore certainly seems cut from the same cloth.

So why do conservatives tend to exalt one case and liberals the other? Because too often we are concerned primarily with the result, not the philosophy that produced the result.

The modern conservative critique of the work of the Supreme Court is, at its best, an argument about how, not what, the Court should decide. Columnist George Will and the editorial page of the Wall Street Journal have both recently said that justices should be chosen because of a respect for the methodology they are likely to follow in deciding cases—not because we think we know in advance how they are likely to vote.

During President Bush's disastrous effort last fall to elevate White House counsel Harriet Miers to the Supreme Court, many of her conservative opponents objected that they could not see in her background a commitment to overturn Roe v. Wade. Maybe not. But a position on a single case is not a philosophy.

Related Elsewhere:

Our full coverage on the Supreme Court vacancies is collected online.

Recent CT articles on the Supreme Court include:

Justice for Life? | "Of course he's against abortion," says Alito's mom. But Roe is expected to stand—and some say that shouldn't be the focus anyway. (Nov. 4, 2005)
Alito Nomination Pleases Christian Conservatives | Supporters cite judge's credentials and decisions on religious expression. (Nov. 2, 2005)
Miers Withdrawal Shows Split Among Religious Conservatives | High-profile cases underscore stakes for next nominee. (Oct. 27, 2005)
Article continues below
What If They Threw a Judicial Confirmation Battle and Nobody Came? | Though Roberts nomination looks certain, groups say they'll spend resources on the debate—and set the stage for the next one. (Aug. 8, 2005)
In Perspective
Where Does Feminists for Life Fit in the Pro-life Community? | Group brings unique niche strategy to the movement. (July 29, 2005)

Recent Christianity Today columns by Stephen L. Carter include:

Evolution, Not Revolution | Christians need to lower their Supreme Court expectations. (Nov. 1, 2005)
Sticker Shock | When a judge violated the church-state peace treaty. (March 02, 2005)
Politics for Adults | A Supreme Court justice showed us how to "do business" with opponents. (Jan. 12, 2005)
Defending Our Neighbor | Can we start a war to protect others? (Nov. 10, 2004)
Loving Military Enemies | War does not exempt Christians from the second-greatest commandment. (Sept. 07, 2004)
Hope Deferred | Christians are uniquely positioned to further racial equality. (June 29, 2004)
A Politics of Gratitude | Stop whining, count your blessings, and love your global neighbors. (March 08, 2004)
Sports Mobs and Manners | There's a difference between cheering the home team and being boorish. (Aug. 25, 2003)
Roe vs. Judicial Sense | Forget briefly its immorality—it's just bad law (July 1, 2003)
Willing to Lose | By voting we place our hope in the next world. (March 4, 2003)
Virtue via Vouchers | The Supreme Court's recent decision can help prevent more corporate scandals. (Dec. 4, 2002)
Remedial History | The educational establishment seems confused about our spiritual heritage. (July 10, 2002)
Uncle Sam Is Not Your Dad | The separation of church and state protects families too. (March 22, 2002)
A Quiet Compromise | Why a moment of silence is better than school prayer. (Feb. 25, 2002)

Have something to add about this? See something we missed? Share your feedback here.

Civil Reactions
Stephen Carter is the William Nelson Cromwell Professor of Law at Yale University. He is the author of The Impeachment of Abraham Lincoln (2012), The Violence of Peace, The Emperor of Ocean Park, and many other books. His column, "Civil Reactions," ran from 2001 until 2007.
Previous Civil Reactions Columns:

Our digital archives are a work in progress. Let us know if corrections need to be made.