What is "judicial activism"? How about "strict constructionism"? The answers mirror the debate over the Supreme Court itself, but the short version might be: It depends.

In a National Journal cover story written days after President Bush nominated John Roberts for the court in 2005, Stuart Taylor Jr. delved into what kind of justice Roberts could be. His analysis of the terms of debate could shed some light on the coming discussion of President Obama's first nominee.

Below are excerpts from his story. Subscribers can read the full story here.

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.

Rest of the story after the jump.

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 -- Antonin Scalia and Clarence 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?

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."

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"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.

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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.

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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 decades.

It'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."