The media have wasted no time in getting to work on the past record of John Roberts Jr. But with only two years' experience as a judge, the Supreme Court nominee has left relatively few clues as to his judicial philosophy. Is he a traditionalist? A strict constructionist? A judicial activist? What do these labels mean anyway, and do they really tell us what we need to know? Bob talks legal language with literary theorist and legal scholar Stanley Fish.
BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. This week all eyes were on John Roberts, Jr., the U.S. Appellate judge nominated to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. With only two years' experience as a judge under his robe, Roberts has offered few public clues as to his judicial philosophy. But we can assume he met President Bush's central requirement, as stated during Campaign 2000.
PRESIDENT BUSH: I don't believe in liberal activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint.
BOB GARFIELD: Yes, we've learned all week the nominee is a constructionist, but not an activist or an extremist or a Methodist, or any number of "-ists." The media were awash in such terms, including "traditionalist," "originalist" and "pragmatist." But what do they mean? And, more importantly, do they tell us what we need to know? To help walk us through the list of "-ists," we consulted Professor Stanley Fish of the Law School faculty at the Florida International University. We began by asking about the President's bid specifications for a strict constructionist.
PROFESSOR STANLEY FISH: Many people who use strict constructionism mean textualism, by which they mean sticking to the meanings that are encoded in the texts and not going beyond them.
BOB GARFIELD: According to a piece he wrote in the New York Times, the text can never speak for itself. Tell me why.
PROFESSOR STANLEY FISH: It is always possible to ask, even of the most explicit words, what does that mean, what did you mean by that. A good example would be in many marriages a wife will say to her husband, "Why don't we go to the movies tonight?" What does that mean? The answer to that question depends on the history of the marriage, the kind of relationship they have, the kind of person the husband thinks the wife is. The words themselves will not produce a fixed account of their meaning.
BOB GARFIELD: Mmm. Well, never mind going to the movies. Tell me what they mean when they say, "Does this dress make me look fat"? This is actually something I need to know.
PROFESSOR STANLEY FISH: Exactly right. You know what the answer--
BOB GARFIELD: [LAUGHING]
PROFESSOR STANLEY FISH: --has to be. It has nothing to do with the supposed fixed meanings that words have, and everything to do with the intentions that you ascribe to people with whom you interact, especially if you've been married to them for 25 years.
BOB GARFIELD: Okay, now let's go out of the fanciful back into the actual Constitution and look for a moment at just the establishment clause. It seems to be, for example quite explicit that the state shall establish no religion.
PROFESSOR STANLEY FISH: Mmm-hmm. [AFFIRMATIVE].
BOB GARFIELD: Isn't that, more or less, a black and white statement?
PROFESSOR STANLEY FISH: No, not at all because then the argument has to be what is the meaning of "establishment"? Is it establishing a religion when you allow tax credits for religious institutions? Is it establishing a religion when you allow students to organize prayers at high school football games? These are all issues, as you know, that have been adjudicated in the courts The establishment clause does not give you the answer to these questions. You have to say something about what the framers had in mind, and then figure out what they might have said if this particular new set of facts were given to them.
BOB GARFIELD: You know, I'm beginning to feel like a masochist but let me talk about another "-ist" word, "traditionalist."
PROFESSOR STANLEY FISH: I think that when most people use that term, they mean someone who is respectful of precedent, that is, who will look at what is settled law and tend to try to extend settled law, rather than to overturn it.
BOB GARFIELD: And then we've also heard the term invoked, "activist."
PROFESSOR STANLEY FISH: Yes.
BOB GARFIELD: This has been used by the President to describe those who he believes would legislate from the bench, would usurp Congress' authority to create law from the bench. But do you believe that it's a fair descriptor?
PROFESSOR STANLEY FISH: Well, everyone calls the judge who issues an opinion he or she does not agree with a judicial activist. Everyone believes that his or her view of what the text says is plain, perspicuous and obvious and, therefore, that anyone who disagrees with it must be engaged in a willful act of activism.
BOB GARFIELD: So, for example, the political right could call the Earl Warren court the pantheon of judicial activism, but those from the left could say that Justice Scalia and Justice Clarence Thomas and Justice Rehnquist are activists from the right.
PROFESSOR STANLEY FISH: Absolutely. And actually, these legal categories can migrate from one side of the political aisle to the other, and often do. For example, the doctrine of settled law at one point, for 50 or 55 years, was used to maintain the separate but equal policy first announced in Plessy vs. Ferguson, and that was then overturned by the court in 1954. But now settled law is being advocated by those who wish to retain the Roe v. Wade decision, giving women at least limited rights to abortion.
BOB GARFIELD: As we follow the debate and the confirmation process, is there any other terminology that we should listen for to make sure that it isn't being abused, either by committee members or by the press?
PROFESSOR STANLEY FISH: Well, I don't think that any of these terms should be part of the conversation and part of the hearing. Judges should be asked to describe the way they go about assessing evidence, what kinds of principles are they going to apply. If the questioning goes in that direction, you will have a feel for the way in which the nominee thinks. If you allow these categories, like "strict constructionist," "textualist" and "judicial activist" to rule the discussion, you will be talking not about what judges really do, but about caricatured versions of what judges really do. And that won't be a good idea.
BOB GARFIELD: All right. Well, Professor Fish, thank you very much.
PROFESSOR STANLEY FISH: Thank you very much.
BOB GARFIELD: Long-time scholar of literary theory, Professor Stanley Fish, is now a member of the Law School faculty at Florida International University in Miami.
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