Rhetorical bombs thrown at courts and judges are a common theme on the right and have been for quite some time. Any judge who rules against them is branded an “activist judge” seeking to impose “judicial tyranny”. We hear constant screeds against “unelected judges” who “subvert the will of the people” (curiously, and tellingly, they were dead silent when the courts struck down California’s medical marijuana law, passed by popular referendum, or when they struck down Oregon’s assisted suicide law, passed twice by popular referendum).
Religious right groups have held conferences to do nothing but complain about judges. Pat Robertson openly prays that God will strike down Supreme Court justices. Many prominent conservatives have called for investigations and impeachment for judges who decide cases in a way they object to. One Republican Senator, himself a former judge, even suggested that there was a link between “judicial activism” and a brief rash of courtroom shootings – as if, to quote Charles Krauthammer, “courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism.”
Tom DeLay, before leaving office in disgrace, thundered that judges who dared vote in ways he disapproves of would “answer for their behavior” and threatened to cut off funding to the courts (this was right after DeLay called “incredibly outrageous” the fact that Justice Kennedy said that he often did research on the internet – DeLay being too ignorant to know that Westlaw and Lexis, the two primary legal research services, are both on the internet). Tony Perkins of the Family Research Council, called the courts the greatest threat to America, “greater than terrorist groups.”
At one such conference last April, a litany of religious right leaders called for the impeachment of Justice Kennedy (a Reagan appointee, for crying out loud) and one went so far as to accuse Kennedy of upholding “Marxist, Leninist, satanic principles drawn from foreign law.” But where does such rhetoric ultimately lead? To a constitutional crisis if and when an administration drunk on power decides that it can simply ignore a Supreme Court ruling and do what it wants.
It has been building toward this for quite a while. It started with Roy Moore claiming the right to ignore a Federal court ruling that his ten commandments monument had to be removed from the courtroom. And while that may have been too much even for most of his fellow conservatives, even folks like William Pryor, the chorus for such nullification of judicial acts has been growing. In an interview with NPR last year, a Republican congressman, Steve King of Iowa, said:
Congress created all of the courts; all the federal courts, Congress grants them jurisdiction. So whatever Congress gives, they can take away. If we wanted to abolish the 9th Circuit, for example, we could do that. Now I’m not going to say I think that’s the prudent thing to do. We could also cut the budget. We could prohibit the Justice Department from enforcing the orders of the court.
And now we have this interview at The American View, a loony religious right page tied to the Constitution Party, with Jim Gilchrist, head of the Minuteman Project. And when the subject turns to abortion, here’s what he had to say:
Q: The truth hurts, doesn’t it? Now, how do you, Jim Gilchrist, view the Roe v. Wade decision?
A: It never should have happened.
Q: Is it law?
A: It’s a court precedent, and I don’t look at it as law, other than it’s a benchmark that the pro-abortionists use to say, hey, this is okay, I’m not doing anything wrong. Mind your own business and go away. Well, lady, this is like the seventh abortion you’ve had in the last four years! Yea, but it’s my body and Roe v. Wade says it’s legal so leave me alone. You’re kind of dealing with a mental illness mentality, and a very selfish mentality and a very irresponsible mentality and you can’t beat ’em to death on it. It doesn’t mean that you have to tolerate them, but we do anyway, but the best way is to try to convince them and put some guilt into their conscience so maybe they can look at the issue in a different way. Roe v. Wade is nothing but a court decision. To me it’s not rule of law, but a judge looks at it another way and I guess considers it rule of law.
Q: What do you think South Dakota should do if the U.S. Supreme Court strikes down their anti-abortion law?
A: Now, my conscience says that they should ignore it, but, here I am preaching the rule of law, then if we have immigration laws, then what business does the Catholic Church have, and other religious orders have in telling their parishioners to violate that law? Where do I go here? This is, but then I could split it this way – we’re talking about life rather than someone trespassing – over our international borders. Now I think that with that argument, I could make a valid argument, that is saying this law should not be respected because what law would order a society to kill people? Yeah, I would feel comfortable with that. I would feel comfortable with that, so I would say, yeah, just ignore the law.
Q: So South Dakota should just ignore the Supreme Court?
A: Yes, I would tell them to defy any legislation or any ruling against their decision (anti-abortion law) because the argument is – look, we’re ruling for life. We’re talking about human life here. We’re not talking about an immigration issue, or burglary issue. We’re talking about human life here, and with that argument I bet you could win it!
Now, I don’t think most conservatives would stand for just ignoring the Supreme Court. Certainly, the conservative intelligentsia wouldn’t stand for it. But there’s a sizable percentage of the radicals that are all for it, who really do believe, as Roy Moore and John Lofton do, that if a court ruling conflicts with the Bible – or at least their interpretation of it – then that ruling can and should be ignored. That would prompt a crisis that might well bring down our entire constitutional system, but that’s fine with them. Indeed, I think that’s ultimately their goal. They may claim to be trying to “restore” the Constitution to its “Judeo-Christian roots”, but the truth is that the Constitution is what prevents the theocracy that they truly want and thus it has to go. And I think that’s the ultimate goal of their furious anti-judicial rhetoric.