Judge John G. Roberts Jr. will "strictly apply the Constitution and laws, not legislate from the bench," President Bush said Tuesday night in announcing his Supreme Court nominee. "Strict constructionist" was on the lips of many Bush-Roberts supporters confident that Roberts is no "judicial activist."

Liberal groups, for their part, trumpeted suspicions that that deep down, the widely liked and respected Roberts is — or may be — an "extremist." An "ultra-right judicial activist." A "right-wing corporate lawyer." "Out of the mainstream." An ideologue. Hostile to women’s rights, civil rights, minority rights, disability rights, privacy rights, abortion rights, and gay rights.

One point of consensus among some activists of both the Republican Right and the Democratic Left is that he would be "along the lines of [an Antonin] Scalia or a [Clarence] Thomas." Those were the gleeful words of Tony Perkins, of the arch-conservative Family Research Council — and they were gleefully seized upon by Ralph Neas, of the arch-liberal People for the American Way. In a press release headed, "Why Is the Far Right Rejoicing About Roberts’ Nomination?" Neas called Scalia and Thomas "stunningly radical … far-right activists."

(Friends of Roberts say he is a clone of nobody and smarter than almost everybody.)

Scholars prefer less-loaded, more-obscure labels to identify the various strains of conservative legal thought that might shape Roberts’s thinking: Originalist. Textualist. Traditionalist. Fundamentalist. Minimalist. Libertarian. "Lochnerist." Statist. Majoritarian. Scalian, even.

Words, words, words. What do they tell us about John Roberts, who has expressed doubt about whether a judge should "have an all-encompassing philosophy"? Or about the other people to whom such labels are affixed? How can you gauge whether Roberts is likely to be your kind of justice? Does it come down to divining his political views about the big issues? Is law, like war, simply the extension of politics by other means?

Both the importance and the difficulty of capturing in a word, a phrase, or even an entire news story the essence of any Supreme Court candidate — especially one with as ideologically unrevealing a paper trail as Roberts’s — call to mind an aphorism of Justice Oliver Wendell Holmes. "The chief end of man is to form general propositions," said Holmes, but "no general proposition is worth a damn."

Generalize we must, however, whether to prognosticate about this nominee or to evaluate the Bush approach to judge-picking generally. And that involves exploring what Bush and other conservatives mean by "strict constructionism" (good) and "judicial legislating" or "judicial activism" (bad); whether they have faithfully followed their professed principles; how consistently these principles can be applied in today’s world; and whether most Americans would want them consistently applied.

This is trickier than it might first appear, for at least five reasons that will be explored in detail below:

• Slogans such as "strict constructionism" and "judicial activism" mean different things to different people, and sometimes different things to the same people at different times. For these and other reasons, in many cases it is far from clear how a strict constructionist would rule.

• The justices whom Bush has singled out for special praise — Scalia and Thomas — have themselves been plausibly accused by critics (including some conservatives) of dabbling in judicial legislating, especially on states’ rights. And Scalia has explicitly rejected "strict constructionism." Will Roberts be more restrained in the use of judicial power?

• Scalia and Thomas also disagree with one another in important ways, especially on the weight that justices should give to precedents they disagree with. This is an issue that Roberts will have to grapple with in every new case in which a precedent points to a result that he considers erroneous.

• Some conservative legal thinkers, including Bush-appointed federal appeals court Judge Janice Rogers Brown (often touted for the Supreme Court), want the Court to sweep aside economic regulations by reviving doctrines long denounced as "judicial activism" by conservative icon Robert Bork, among many others. Does Roberts agree with Brown, or with Bork?

• Most Americans value many of the new rights created by non-strict-constructionist justices in dozens of precedents since the 1920s. Partly for this reason, most liberal scholars, and moderates including Senate Judiciary Committee Chairman Arlen Specter, R-Pa., have little or no use for strict constructionism. They want justices to breathe progressive values into what some call our "living Constitution." Does Roberts?

Strict Constructionism, Judicial Activism Republican presidents since Richard Nixon have said that strict construction, or interpretation, of the Constitution is what they want, and judicial legislation and activism are what they don’t want.

Does "strict construction" mean literal interpretation? Or narrow interpretation, in the sense of resolving ambiguities in the literal meaning of a provision in whichever way gives greatest deference to the elected branches of government?

It could mean either, or both. The most-controversial Supreme Court decisions of the 1960s and 1970s used nonliteral, broad, novel, nondeferential readings of the Constitution to strike down democratically adopted state and federal laws. So either a literal or a narrow interpretation could serve the purposes of conservative critics.

Critics could also use either interpretive approach to appeal to the popular belief that in our democracy the elected representatives of the people make the laws, and courts are confined to the more modest role of applying these laws as written unless they violate the clear intent of the Constitution.

But some conservative sloganeers now use "strict construction" to mean almost the opposite of deference to democratic choices, as when they seek to strike down congressional curbs on campaign money by invoking a debatably broad interpretation of the First Amendment "freedom of speech."

And Scalia has eschewed "strict construction," saying: "A text should not be construed strictly, and it should not be construed leniently. It should be construed reasonably, to contain all that it fairly means."

"Judicial activism" can also mean different things to different people. To some extent, of course, the phrase has become a mere imprecation against any judicial decision that one dislikes. But to the extent that "judicial activism" retains objective, nonpejorative meaning, it is the opposite of deference to democratic choice; it describes judges who are relatively aggressive in using novel or debatable constitutional interpretations to overrule the elected branches.

But conservatives often accuse courts of "judicial activism" not only for striking down democratically adopted polices that conservatives like, but also for upholding democratically adopted policies that conservatives dislike.

A recent example was the 5-4 decision on June 23, over an angry conservative dissent, to allow New London, Conn., to use its eminent domain power to force people out of their homes and give their land to private developers promising more jobs and more tax revenue. The decision was widely denounced by conservatives, moderates, and some liberals. But it was odd to hear it called "judicial activism" by some. Right or wrong, this was a clear case of deference to democratic choice — to the power of the city’s elected leaders to carry out their chosen policy.

Similarly, the conservative Wall Street Journal editorial page on July 19 accused the Court’s "long-standing liberal majority" of "dictating racial and gender preferences in law." But most of the decisions of which the editorialists complain did not "dictate" preferences. They deferred to government officials and private executives who had chosen to use preferences.

A more analytically coherent notion of judicial activism was suggested in a July 6 New York Times op-ed by Paul Gewirtz, a Yale law professor, and Chad Golder, a 2005 Yale Law School graduate, based on their study of the nine current justices’ voting patterns in the 64 decisions striking down federal laws since 1994:

"We’ve identified one reasonably objective and quantifiable measure of a judge’s activism, . . . : How often has each justice voted to strike down a law passed by Congress? Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That’s because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy…"Those justices often considered more ‘liberal’ — Justices [Stephen] Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens — vote least frequently to overturn congressional statutes, while those often labeled ‘conservative’ vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist."

Thomas, for example, voted to strike down the acts of Congress in 66 percent of these 64 cases, compared with 28 percent for BreyerOf course, the Court should strike down laws that clearly violate the Constitution, as Gewirtz and Golder note. And judicial activism as they define it is not necessarily bad. But they stress that "a marked pattern of invalidating congressional laws [of debatable constitutionality] certainly seems like one reasonable definition of judicial activism."

If Gewirtz and Golder had focused their study on decisions striking down state and local laws, the liberals might (or might not) have looked more activist, and the conservatives less so. When state and federal laws conflict, for example, liberals tend to side with the feds; conservatives with the statesNone of this is to suggest that "strict constructionism," "judicial activism," and "judicial legislation" have no objective meaning at all. Many liberal precedents have overruled elected officials and rejected both the literal and the historical meanings of the relevant constitutional provisions. By any reasonable definition, such decisions are activist "judicial legislation," not strict constructionism — although (some say) this does not necessarily make them wrong.

Take the Warren Court’s famous 5-4 decision in Miranda v. Arizona, in 1966, requiring police to give arrested suspects the warnings that cop shows have made famous: You have a right to remain silent, to have a lawyer present during any questioning, and so forth.

As Kennedy-appointed Justice Byron White wrote in dissent, Miranda "has no significant support in the history [or] language of the Fifth Amendment," which says that no person "shall be compelled in any criminal case to be a witness against himself." For better or (in his view) worse, White continued, the majority had simply decided "to make new law and new public policy" and to call it constitutional interpretation.

Or take Roe v. Wade, long assailed as judicial legislation not only by conservatives but also by many moderate and even liberal scholars; this includes many who favor making abortion broadly accessible as a matter of policy. While disputing vigorously whether Roe should be overruled, these ideologically diverse critics agree that nothing in the Constitution empowered the unelected justices to impose their own abortion policies on the nation in 1973 by sweeping aside the laws of all 50 states.

Justice Harry Blackmun’s widely ridiculed opinion for the 7-2 Roe majority "is bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be," wrote the late constitutional scholar John Hart Ely, an admirer of the Warren Court, in 1974. "The Court ventured too far in the change it ordered," then-Judge Ruth Bader Ginsburg, the leading feminist lawyer of the 20th century, wrote in 1985. "Even most liberal jurisprudes — if you administer truth serum — will tell you [Roe] is basically indefensible," wrote Edward Lazarus, a liberal Washington lawyer who clerked for Blackmun, in a recent Washington Post op-ed.

It’s a safe bet that whatever his personal views on abortion, any judicial conservative such as Judge Roberts would agree that Roe was erroneous. Whether he would overrule the 32-year-old precedent — which the Court has repeatedly reaffirmed and which most Americans do not want overruled — is a trickier question.

States’ Rights: Conservative Judicial Legislation? Liberal complaints about "conservative judicial activism" have centered on an effort by the five more-conservative justices — Chief Justice William Rehnquist and Justices Scalia, Thomas, O’Connor, and Anthony Kennedy — to engineer what some saw as the beginnings of a "states’-rights revolution."

And now liberal groups are citing a dissent by Judge Roberts two years ago as evidence that he wants to help lead the revolution by driving a states’-rights stake through the heart of federal environmental protection laws.

In a succession of 5-4 decisions between 1992 and 2002, the justices curbed Congress’s powers in two distinct areas and thereby revived a conception of federalism that had been moribund since 1937, when the Court had switched from striking down New Deal programs to upholding them.

Liberals, fearing a broad-based assault on federal regulatory programs and anti-discrimination laws, have furiously assailed the conservative justices for "Dissing Congress," as one law review article was titled.

Two of these decisions, in 1995 and 2000, set an outer limit on Congress’s ability to intervene, in the name of regulating interstate commerce, in noncommercial intrastate matters, such as rape and domestic violence.

Those were the basis of Judge Roberts’s somewhat ambiguous 2003 dissent questioning a federal regulation to protect arroyo toads as an endangered species. He doubted that "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘commerce … among the several states.’ "

Democrats will press Roberts to explain whether this dissent signaled broader skepticism about the constitutionality of the vast body of federal environmental and other laws that rest on Congress’s commerce power.

Liberal attacks on the two Supreme Court decisions cited by Roberts have not gained much traction outside the law schools. One reason is that the voided provisions have been of relatively minor importance. A second reason is that — as a June 6 decision involving medical marijuana made clear — only one of the current justices (Thomas), and perhaps also the ailing Rehnquist, have much zeal to narrow Congress’s power enough to endanger major federal regulatory programs. A third reason is that the Founders clearly intended that there be some outer limit on congressional power over intrastate activities.

Indeed, no less a liberal luminary than Harvard Law School’s Laurence Tribe has said that to "permit Congress to regulate anything and everything that in any way relates to or affects commerce [would] essentially reject the principle of limited national authority embodied in the Tenth Amendment and in the structure and history of the Constitution as a whole."

The second line of Supreme Court states’-rights decisions has held that state governments enjoy sovereign immunity from federal lawsuits by individuals seeking monetary damages, except for certain violations of the 14th Amendment.

The liberal attacks on these decisions have been logically compelling and have been joined by some conservatives, such as Harvard Law School’s Charles Fried.

These decisions have immunized states from federal lawsuits for damages filed by their own citizens (among others) even in cases in which the states have chosen to become competitors in the commercial marketplace and have used their immunities to obtain unfair advantages over private competitors.

The conservative justices — including Scalia, who has long preached fidelity to the original, literal meaning of the text of the Constitution ("textualism") — thereby expanded states’ sovereign immunities far beyond anything suggested by the text of the 11th Amendment. It protects states only from suits by citizens of other states.

The majority has justified this departure from strict construction by claiming that the Constitution’s structure, disputed evidence of the Framers’ intentions, and an 1890 precedent demanded an immunity broader than the one specified in the 11th Amendment’s text. Such creative interpretation is reminiscent of liberal judicial activists’ reliance — much-ridiculed by conservatives — on what a 1965 opinion called "penumbras, formed by emanations" from the Constitution, to invent new individual rights.

So here are the Court’s conservatives doing a variant of what liberals did in Miranda and Roe: overruling another branch of government, with little or no basis in the Constitution’s text.

Indeed, no less a conservative luminary than Reagan-appointed Judge John Noonan Jr., of the federal appeals court in San Francisco, wrote a 2002 book excoriating the sovereign-immunity decisions as "driven by abstractions" and presenting "a danger to the exercise of democratic government."

Another judge, who supports these decisions, privately retorts that their real-world impact "doesn’t amount to a hill of beans." There’s something to that. Most Americans are unaffected by the sovereign-immunity cases and have no idea what they are about. But sometimes a hill of beans is more than a hill of beans.

Roberts is surely aware that the sovereign-immunity decisions are widely seen by scholars as undercutting the conservative justices’ claims that they eschew judicial activism. In some of these cases, O’Connor has sided with the conservatives. Might Roberts side with the liberals?

Scalia v. Thomas, Liberals v. Scalia Although Scalia and Thomas often vote on the same side, it is a common mistake to lump them together as leader and follower, or as ideological clones. In fact, they have some far-reaching disagreements. Most important, Thomas would like to demolish a far larger body of established precedents.

A vivid example came in the most important states’-rights case of recent years, the June 6 decision upholding application of the broad federal ban on marijuana, even to cultivation of small quantities at home for medical use and even in the 11 states that have legalized medical marijuana.

This may sound like a win for drug-warring conservatives. But as a jurisprudential matter, it was a huge victory for advocates — including the Court’s four most liberal members — of virtually unlimited congressional regulatory power.

The biggest surprise was that Scalia (as well as Kennedy) voted with the majority, thereby parting with Thomas, Rehnquist, and O’Connor. Scalia saw this case as different from earlier ones in which he had voted to bar congressional intervention into noncommercial intrastate activities such as violence against women. He stressed that even marijuana supposedly grown for medical use could leak into interstate commerce and undercut the comprehensive federal ban.

Thomas, on the other hand, wrote in dissent: "If Congress can regulate this under the commerce clause, then it can regulate virtually anything — and the federal government is no longer one of limited and enumerated powers." He argued that in 1789, "commerce" did not include economic activities such as manufacturing and agriculture, and that "it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."

In this and previous opinions, Thomas has hinted that the pre-New Deal reading of the Constitution should be restored. This would not only topple 68 years of precedents but also put large chunks of the federal government out of business.

As George Will has said of the medical-marijuana case, "Which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose."

In a 2004 book about Thomas by Ken Foskett, Scalia is quoted distinguishing his approach to stare decisis — Latin for the doctrine that courts should ordinarily adhere to their own precedents — from Thomas’s. Scalia explained that Thomas "doesn’t believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, Let’s get it right. I wouldn’t do that."

As if to prove Scalia’s point, Thomas renewed in a June 27 concurrence his startling proposal that the Court overrule its 58-year-old doctrine that the First Amendment’s ban on "establishment of religion" binds the states as well as the federal government. Under his approach, states could establish official churches.

Thomas does, however, seem attached to one line of precedents that has no support in the original meaning of the Constitution or its amendments. Those are the decisions barring racial discrimination by the federal government. They happen to be the doctrinal foundation of a major project of Thomas and other conservatives: attacking federal racial-preference programs.

The Fourteenth Amendment’s equal-protection clause bars racial discrimination by states, of course. But nothing in the Constitution was intended to bar discrimination by the federal government. This was a problem for the Warren Court in 1954. It was eager to desegregate the schools in the federally controlled District of Columbia as well as in Southern states. The solution was to pretend that federal racial discrimination violates due process of law. This would have been a big surprise to the Framers. But it seems OK by Thomas, and just about everybody else in today’s America. The lesson is not that Thomas is a hypocrite. It is that overruling all judicial-activist, nonoriginalist precedents would lead to results that nobody wants.

Scalia himself also gives stare decisis much less weight than liberals say he should. He has repeatedly called for overruling Roe; has dissented bitterly from the Court’s refusal in 2000 to overrule Miranda v. Arizona; has often argued for overruling the precedents that curb official use of religious symbols and aid to religious institutions; and more.

The more-liberal justices, including swing voters O’Connor and Kennedy, have more reverence for precedents. For some of them, that is.

In their 1992 joint opinion in Planned Parenthood v. Casey, reaffirming the much-assailed decision in Roe, O’Connor, Kennedy, and Souter wrote an extraordinary paean to precedent and stressed their determination to stick with Roe even if it was wrongly decided:

"To overrule under fire … would subvert the Court’s legitimacy…. To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast…. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives…. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals."

But 11 years later, in Lawrence v. Texas, a liberal majority (including the same Kennedy and Souter) overruled another much-assailed precedent. That was the 1986 decision that homosexual acts are unprotected by the Constitution. Scalia, in dissent again, said the majority’s "manipulative" approach had "exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is."

Look for Senate Democrats to ask Judge Roberts at his confirmation hearing whether he shares the Casey majority’s reverence for precedent. Look for Roberts, if he has an impish streak, to note how little reverence some of the same justices displayed in LawrenceAnd don’t assume that Roberts himself knows whether he would overrule Roe, or any other precedent. As the late constitutional scholar Alexander Bickel wrote, "You shoot an arrow into a far-distant future when you appoint a justice, and not the man himself can tell you what he will think about some of the problems that he will face."

Janice Rogers Brown v. Robert Bork The disagreements between Scalia and Thomas are small compared with those among other factions in the conservative coalition.

"In the 1960s and 1970s, many principled conservatives were committed to a restrained and cautious federal judiciary," writes Cass Sunstein, a University of Chicago law professor, in his forthcoming book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. "They wanted courts to back off. They asked judges to respect the decisions of Congress, the president, and state legislatures; they spoke in explicitly democratic terms. This is far less true today. Increasingly, the goal has been to promote ‘movement judges’ — judges with no interest in judicial restraint and with a demonstrated willingness to strike down the acts of Congress and state government."

A leading advocate of this brand of judicial activism is the University of Chicago Law School’s Richard Epstein. The above-mentioned, Bush-appointed Judge Janice Rogers Brown embraced Epstein’s expansive views of property rights and of economic liberty, and his narrow view of congressional power, in two speeches in 2000.

Brown denounced as "the triumph of our own socialist revolution" — which she likened to the Russian Revolution of 1917 — the 1937 Supreme Court decisions upholding key New Deal programs and state minimum-wage laws.

Asserting that "the problem [with the Supreme Court] may not be judicial activism," she called for the justices to go back to striking down many federal and state economic regulations, and to enforcing "extra-constitutional rights," by reinstating long-dead precedents such as the infamous 1905 decision in Lochner v. New York.

What lawyers call "Lochnerism" was the basis for dozens of decisions striking down minimum-wage, maximum-hours, and other worker-protection laws as infringing on "liberty of contract." But the Constitution says nothing about liberty of contract. And all but a handful of constitutional scholars have rejected Lochnerism.

Bork, for one, has called Lochner an "abomination" and "the quintessence of judicial usurpation of power." Scalia has said more or less the same, adding that unelected justices have no mandate "to impose a particular economic philosophy upon the Constitution." Does Roberts agree?

Judicial Legislation That Most People Like For every Richard Epstein and Janice Rogers Brown, there are dozens of liberal scholars who have spent decades constructing theories as to why the text, original intent, and history of our founding document should not keep the Court from filling it with their own values and political agendas. They want the justices to use their new, improved "living Constitution" to override benighted popular majorities.

This "living Constitution" idea has been at the heart of Miranda, Roe, and many other constitutional precedents since the 1960s, and some going back to the 1920s. How have the justices gotten away with what critics, including Bork and Scalia, have plausibly called such bald usurpations of power?

Perhaps the most important reason is that much of the judicial legislation engineered by the Court either was inoffensive to most voters when it occurred or has won public acceptance over timeThere was no great protest, for example, when the Court cited a "right to privacy" (the word "privacy" appearing nowhere in the Constitution) in 1965 and afterward to strike down the few state laws against contraceptive use or sale. Or when it stretched the original meaning of the post-Civil War equal-protection clause to ban sex discrimination.

As for Miranda, which Richard Nixon assailed in his successful 1968 campaign, it has "become embedded in routine police practice to the point where the warnings have become part of our national culture." So said none other than Rehnquist, long a Miranda critic, in a 7-2 decision reaffirming it five years ago. A subsequent Newsweek poll showed respondents agreeing 86 percent to 11 percent.

Roe v. Wade continues to embitter tens of millions of Americans. But in a Gallup poll this month for CNN/USA Today, respondents said "no, not overturn," by 68 percent to 29 percent when asked: "Would you like to see the Supreme Court completely overturn its Roe v. Wade decision, or not?"

So just about everybody likes judicial legislating some of the time. Stare decisis allows the Court to keep those precedents that have won broad public acceptance.

And sometimes the justices are better than our bitterly polarized legislative bodies at giving most voters what they want. Consider the Republican Congress that appealed in March to its religious-conservative base, and offended many more Americans, by trying in vain to get federal courts to reinsert Terri Schiavo’s feeding tube. And consider the fact that public confidence in the judiciary has — despite a dip over the past two years — been far greater than confidence in Congress for decadesIt’s all part of the glorious messiness of our constitutional democracy. In the end, the jurisprudential journey of John Roberts may depend less on any all-encompassing judicial philosophy or secret political platform than on the balances that he strikes, from one case to the next, in resolving a dilemma identified by the great Judge Learned Hand:

"Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies…. For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."