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Judicial restraint follows earlier precedents, tends to uphold existing or new laws, and uses an originalist or constructionalist interpretation of the Constitution (these are literal frameworks).

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Judicial restraint follows earlier precedents, tends to uphold existing or new laws, and uses an originalist or constructionalist interpretation of the Constitution (these are literal frameworks).

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As an originalist, Justice Scalia is very skeptical about any type of "judge made" law. Scalia tries to look only to the words and original meaning of the constitution for his interpretation. When criticized about his opinions, he often says that justices like Ginsburg, Kagan, Sotomayor and Breyer are merely using their own thoughts to read the constitution rather than the text itself.

For example: One of the rights that Americans hold dear, the right to privacy, is not mentioned in the constitution at all. Historically, the Supreme Court has used the right to privacy to justify all sorts of rulings, from those supporting abortion to those opposing phone wiretapping. Justice Scalia says that there is no such right to privacy in the constitution, and thus, abortion is not OK and wiretapping is.

Another example: Scalia has faced criticism recently for his opinion on the equal protection clause of the 14th amendment. He believes that the 14th amendment was enacted solely to protect African Americans from racism. The trouble is that the 14th amendment has been used to protect women, as well as racial minorities, from discrimination. He believes that the constitution does not promote equal rights for women, but it does forbid discrimination against racial minorities.

Scalia justifies his opinions with the fact that congress, and the states, have the authority to pass an amendment granting equal protection of the laws for gender, but that the 14th amendment cannot protect these rights. He says that the drafters of the 14th amendment only meant to protect minorities, and that is how he responds to criticisms of his originalist positions.

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Clarence Thomas, a Republican nominated by George H. W. Bush in 1991, is considered the most conservative, with Antonin Scalia, a 1986 Reagan nominee, running a close second. Thomas has strong Libertarian leanings, supporting state's rights and taking an orthodox approach toward interpreting the Constitution. Scalia is considered an "originalist" in his thinking, meaning he considers the intention of those who framed and amended the Constitution in his interpretations.

For more information, see Related Questions, below.

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Justice Thomas is a self-proclaimed Originalist who consistently votes with the conservative bloc of the Roberts Court, which has a reputation for being activist, so the appropriate answer to your question is: Both.

Explanation

"Originalist" and "activist" are two completely different concepts. The first refers to a particular approach toward interpreting the Constitution (trying to infer what the original Framers intended), while the second term refers to an inclination to make decisions without regard for precedent or legislation, in order to shape political or social policy from the bench. "Activism" tends to be used as a pejorative to describe progressive decisions, but in reality applies equally to conservatives. "Originalism" is fairly neutral, but also relatively meaningless as it connotes conservative ideology regardless of whether the ideology can be supported by the Framer's purported original intent.

Clarence Thomas considers himself an Originalist, but has allegedly never used historical citations to support his opinions, so the designation is difficult to support. People who refer to themselves as "Originalists" are typically conservative and appear to use the term to imply their decisions are more valid than those of justices who take more of a "living Constitution" approach to the law.

The conservatives on the Roberts' Court have made quite a few decisions that could have been considered "activist," insofar as they have declared certain Acts of Congress unconstitutional and overturned established precedents in order to advance policies that favor corporate interests and corporate personhood (difficult to defend as Originalist thinking). One of the more notable instances of conservative activism occurred in the decision of Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), that opened the floodgates on corporate campaign spending and overturned legislation restricting "electioneering communication" (propaganda) immediately prior to an election.

Although we're taught the US Supreme Court is apolitical, in truth the Court has become increasingly partisan and divided by ideology. The Roberts Court has five conservative justices (although Kennedy is more moderate and sometimes votes with the progressive bloc) whose decisions tend to mirror the Republican agenda. Progressives view many of these decisions as activist, just as conservatives considered decisions of the liberal Warren Court activist.

Labels such as Originalism, Textualism, Strict Constructionism and so on, describing justices' interpretive approach to the Constitution are largely subjective and often meaningless. Each side harbors a particular general ideology, and many decisions are predictable on that basis alone. Each sides believes its decisions are constitutionally correct. Each side is adept at rationalizing its decisions using established precedents and constitutional provisions.

William O. Douglas: Majority and Dissent

Justice William O. Douglas supported this idea in his book, The Court Years 1939-1975: The Autobiography of William O. Douglas. In an anecdote about Charles Evans Whittaker, who had been assigned to write the opinion of the Court in the case Meyer v. United States, 362 US 410 (1960), Douglas explained how he came to write both the majority and dissenting opinion for the case:

"In one case when the vote was five to four, Whittaker was assigned to write the opinion for the majority. I had already written the dissent and went to his office to discuss a wholly different matter. When I entered he was pacing his office, walking around his desk with pursed lips as if possessed. I asked him what was wrong. He said, referring to the five-to-four decision, that he had been trying to write the majority opinion but simply could not do it.

'That's because you're on the wrong side,' I said.

'Not at all. Not at all. I am right but I can't get started.'

'Would you like me to send you a draft of the majority opinion?'

'Would you, please?'

"Within an hour the draft was in his office, and when the opinion came down it was one of the few in which the majority and minority opinions were written by the same man."

Douglas, William O. The Court Years 1939-1975: The Autobiography of William O. Douglas. New York: Random House, 1980.

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I am an avid reader of George F. Will (and William F. Buckley, Jonah Goldberg, Tony Blankley, Thomas Sowell, Dennis Prager, and Charles Krauthammer, to name a few). I see no evidence that he is lurching leftward, or even listing to port slightly. None, whatsoever. His opinions are steeped in profound intellectual conservatism. Regarding the Constitution, he is devout originalist. He supports conservative justices for the Supreme Court. He favors limited government and tax cuts. He opposes McCain-Feingold. He favors free markets and free trade and opposes import tariffs. He abhors socialized medicine. He supports gun ownership. He opposes statutory minimum-wage laws and disciminatory affirmative action policies. And that's only the topics that popped right into my head.

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