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Friday, September 02, 2005

Terms that you will hear during Confirmation Process and what they mean

Posted on Thu, Sep. 01, 2005

Guide to legal terms in Supreme Court hearings

Knight Ridder Newspapers

WASHINGTON - (KRT) - Many Americans will watch the confirmation hearings for Supreme Court nominee John G. Roberts, which begin Tuesday, expecting to learn what he thinks about hot topics such as abortion, affirmative action and the environment.

But judicial confirmations are less about policy than the law, and a fairly technical discussion of constitutional law at that.

With that in mind, what follows is a quick guide to some of the terms that will come up repeatedly during the hearings, along with their definitions, the court's current thinking about them and how they relate to the issues people care about.


"Originalism" vs. "Living Constitution"

What are they? The two pre-eminent theories of constitutional interpretation.

Originalists see the constitution through the prism of the founders' specific words and intent. They would oppose abortion rights, for example, because the Constitution says nothing about them. Those who believe in a living Constitution say it must be interpreted according to modern legal and cultural standards.

The Rehnquist court: The court has only two justices who can be called originalists, Antonin Scalia and Clarence Thomas, and they're the most frequent outsiders in rulings. President Bush cites them as his favorites and calls their approach "strict constructionism." The court has resisted strict originalist interpretation in the vast majority of cases, most notably last term when the justices ruled that executing minors is unconstitutional because of evolving standards.

The questions: Roberts has said he isn't a devout adherent to any school of constitutional interpretation, but Senate Democrats will press him to distance himself from Thomas and Scalia.



What is it? The balance of power between the states and the federal government, as outlined in the Constitution. In the last few decades, it's also come to describe a movement - chiefly among conservatives - aimed at deferring more to the states' role in that relationship.

The Rehnquist court: A willing, if sometimes inconsistent, advocate of federalism, the Rehnquist court has drawn liberal ire for striking down or curtailing more acts of Congress than any court in history.

The questions: On everything from civil rights and disability law to economic regulation and criminal law, federalism's advocates say states' authority is being trampled by unconstitutional federal action. Senate Democrats will try to discern how closely Roberts' views align with that.


"Due process" and "Substantive due process"

What are they? The due-process clauses of the Constitution ensure that citizens' legal rights are protected when the government seeks to deprive them of life, liberty or property. They're a procedural restraint on government action. But the court also has long recognized that the idea of due process prevents the government from infringing on certain rights altogether, such as the right to marry, the right to raise children and sexual privacy. Those rights are covered by what's called substantive, rather than procedural, due process.

The Rehnquist court: Like all courts before it, the Rehnquist court has struggled to define where procedure ends and substance begins for due process. Notably, though, it was the first high court to recognize sexual privacy under substantive due process, giving gay citizens formidable protection from discrimination.

The questions: The battle over procedural versus substantive due process is one of the pivotal legal arguments, because it's a proxy for discussions about which rights are constitutionally protected and which aren't. Conservatives, for example, argue that the court has gone overboard with "rights creation," largely through substantive due process. Liberals say those rights are understood in the constitution's general guarantees of liberty. Roberts will be asked to give his view on the scope of individual rights, and how the high court should interpret them.


Roe v. Wade and the right to privacy

What are they? Roe v. Wade is the 1973 ruling that prohibited states from outlawing abortion. It's based on the right to privacy, which the court has recognized since 1965 as one of the Constitution's "unenumerated" rights. It's not mentioned in the text, the court said, but it falls under a "penumbra" of rights associated with liberty.

The Rehnquist court: While the court has embraced some abortion restrictions, such as parental notification, it hasn't managed to overturn Roe itself or substantially curtail the right to privacy. Even without Sandra Day O'Connor, there are five votes to uphold Roe.

The questions: The right to privacy is perhaps the most controversial right of substantive due process, given its connection to the abortion issue. Conservatives want to roll back Roe and the right to privacy, but haven't been successful despite a 7-2 Republican advantage on the high court. Roberts probably won't be asked about Roe v. Wade directly, because judicial nominees for the past decade have refused to share their views on it. But when he's asked about the right to privacy, Senate Democrats will take his answers as a proxy for his views on abortion.


The commerce clause

What is it? The provision of the Constitution that gives Congress - and Congress alone - the right to regulate interstate commerce.

The Rehnquist court: The court, like most in history, has a mixed record on this issue. It's reined in Congress' ability to stretch its commerce-clause powers to regulate areas only tangentially connected to commerce. It struck down a law that made gun possession near any school a federal crime, because Congress didn't require proof that the guns had been sold or carried across state lines. But it's also said the Controlled Substances Act could be employed to prevent the use of medical marijuana that's grown and sold within one state.

The questions: The commerce clause is Congress' hook into many of the social issues it deals with, including civil rights, the environment and even domestic violence. Conservatives tend to take a dim view of that kind of regulation, and have complained that Congress' appetite for regulation has outgrown its constitutional bounds under the commerce clause. When senators ask Roberts about the commerce clause, they're trying to determine how permissive he might be concerning congressional power to shape American life.


The establishment and free exercise clauses

What are they? The two religion clauses of the First Amendment. The establishment clause prohibits government adoption or endorsement of specific religious beliefs; the free-exercise clause prohibits government from infringing on the individual right to practice those beliefs.

The Rehnquist court: The court has a mixed record on these issues, focusing intently on very narrow distinctions: striking down public school-graduation prayers while upholding vouchers for religious schools; embracing Ten Commandments monuments that have a nonreligious context, while rejecting others with specific religious intent.

The questions: O'Connor, whom Roberts will replace, was a pivotal vote on church-state issues and devised the court standard for acceptable government interaction with religion. The tension between personal religious freedom and government endorsement is an ongoing and tense battle on the court as well as in the country. Senate Democrats will try to determine how Roberts, who's expressed more permissive views of government acknowledgement of religion, might bring a different perspective to the court.



What is it? The doctrine that determines under what circumstances plaintiffs may sue in court.

The Rehnquist court: The court has been aggressively limiting access to federal courts, requiring specific foundations for a suit in the Constitution or a congressional act.

The questions: Access to courts is an issue that touches on many areas of law that are dear to liberal hearts. Environmental suits, for example, can easily be attacked on the grounds that private citizens have no standing to sue to protect certain endangered species. Suits against states under many civil rights laws also can be vulnerable when Congress fails to specifically enable them. In a law review article in the early 1990s, Roberts endorsed a very limited view of standing, casting doubt even on whether Congress could grant it. Senate Democrats will press him on the issue.


© 2005, Knight Ridder/Tribune Information Services.