Dispatches from the Creation Wars

One of the most frightening trends of the last few years is the alarming increase in anti-judicial rhetoric from the right. The courts, of course, are a convenient whipping boy for politicians who have to manipulate the populace to get elected to office. The courts are often in the position of having to overturn legislation that is popular and that gives rise to the familiar rhetoric about “unelected judges” violating “the will of the people”. Of course, such rhetoric is highly selective. The right throws a hissy fit whenever a court overturns legislation they support, but when legislation is passed that they dislike, like the assisted suicide law in Oregon or the medical marijuana law in California, they run right to the courts to get those “unelected judges” to throw out “the will of the people”.

So they don’t really mean it when they say that, it’s pure demagoguery designed to foment populist resentment of those “elitist” judges that they can’t fire or vote out of office. Never mind that the courts were designed for that very purpose by the founding fathers, not only to protect the people from possible unconstitutional acts of the legislature but to protect “the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

The independence of the judiciary – the fact that it is insulated from popular opinion and partisan control by virtue of lifetime appointment to the bench – is, Hamilton argued, the single most important bulwark against encroachments on liberty. He wrote:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Yet today we are seeing an increasingly strident attack on the independence of the judiciary from the other branches of government and, in particular, from the political right wing. Several times in the last few years, Congress has had bills submitted that would limit the jurisdiction of the courts in various ways, particularly to remove establishment clause cases from their jurisdiction. Why? Because their rulings in that area tend to be unpopular, especially after being exaggerated and distorted by the conservative media (how many times have you heard a religious right leader claim that the courts had “taken God out of the schools” merely because they banned state sponsored prayer and religious instruction?). So this is the way conservative politicians pander to their constituents, by attacking the court’s independence.

Over the last few years, it almost seems as though the mos shrill voices on the right have tried to one up each other in their anti-judicial rhetoric. After a brief rash of courthouse violence, Sen. Jon Cornyn suggested that it was “judicial activism” that was the cause of it all – because, as we all know, rapists who overpower a deputy sherrif and shoot a judge as part of their escape are really just disgruntled advocates of originalism as the proper mode of constitutional interpretation.

Pat Robertson openly called for God to strike down liberal Supreme Court justices. Tony Perkins declared that the courts are a greater threat to America than terrorist groups. And one Republican Congressman, Steve King of Iowa, suggested that the DOJ refuse to enforce Federal court rulings, while Tom DeLay threatened to cut court funding if they didn’t fall into line. And now we have the race for the Supreme Court of Alabama (an elected position in that state), where 4 of the people running are openly advocating that states should ignore any Federal court rulings they disagree with:

In a debate with powerful echoes of the turbulent civil rights era, four Republicans running for Alabama’s Supreme Court are making an argument legal scholars thought was settled in the 1800s: that state courts are not bound by U.S. Supreme Court precedents.

The Constitution says federal law trumps state laws, and legal experts say there is general agreement that state courts must defer to the U.S. Supreme Court on matters of federal law.

Yet Justice Tom Parker, who is running for chief justice, argues that state judges should refuse to follow U.S. Supreme Court precedents they believe to be erroneous. Three other GOP candidates in Tuesday’s primary have made nearly identical arguments.

“State supreme court judges should not follow obviously wrong decisions simply because they are `precedents,'” Parker wrote in a newspaper opinion piece in January that was prompted by a murder case that came before the Alabama high court.

Parker is a former aide to Roy Moore, who became a hero to the religious right when he was ousted as Alabama’s chief justice in 2003 for refusing to obey a federal judge’s order to remove a Ten Commandments monument from the rotunda of the state courthouse…

During the 1950s and ’60s, Southern politicians — Alabama Gov. George Wallace foremost among them — railed against federal court decisions striking down segregation in schools and public transportation. Segregationists asserted state sovereignty and states’ rights against what they decried as tyrannical interference from Washington.

You see, in their remarkably twisted view, if the Federal government prevents a state from violating the rights of their citizens, whether through Jim Crow laws or anti-sodomy laws or laws against interracial marriage – then they are the ones being oppressed. They have a right to oppress the people within their borders, and if anyone tells them otherwise, why, that’s tyranny. Such is the bizarre logic of such cretins.

In addition to all of this, we have the Bush administration arguing that the courts have no jurisdiction to hear any case at all against the government over the constitutionality of any policy that he deems to be a matter of national security. Read that again: the Bush administration is not merely arguing that the NSA’s various surveillance activities that have caused so much controversy are constitutional; they’re arguing that it doesn’t matter whether they are constitutional or not, the courts can’t even hold a hearing on the matter. The courts have so far rejected this reasoning, and rightly so, but what if the Bush administration decides to follow through on its theory and refuse to cooperate with judicial proceedings, or enforce any judicial ruling in this area?

Where does all this lead? Possibly to a major constitutional crisis. The US has been close to this twice before, once during the Civil War, when Lincoln refused to follow a Supreme Court ruling that said he did not have the right to suspend habeas corpus whenever he felt like it, and once during the New Deal era, when FDR threatened to increase the number of Supreme Court justices from 9 to 17 so that he could nominate, and thereby dominate, the next 8 justices. We are now flirting with it again, and the consequences could be absolutely disasterous.


  1. #2 Halcyon
    June 5, 2006

    I can only guess I’m missing something rather obvious, but what does that post about ‘the thiefs owning all the courtrooms’ have to do with a war on the Judiciary? I don’t see Chet saying that he thinks we need to remove the Judiciary or remove them from office, etc. Just that he thinks they were in Bush’s pocket.

  2. #3 Ed Brayton
    June 5, 2006

    Yeah, I don’t see the point of Roman’s link either. So he found a liberal commenter saying that the courts are in the pockets of conservatives. That really has nothing to do with anything I wrote above. The man isn’t threatening, nor is he in a position to threaten, any sort of action that would prompt a constitutional crisis.

  3. #4 Ginger Yellow
    June 5, 2006

    Ed, we’re already in a constitutional crisis, on many fronts. Just because most Democrats haven’t woken up to the fact doesn’t make it any less of a crisis.

  4. #5 theberle
    June 5, 2006

    Tony Perkins declared that the courts are a greater threat to America than terrorist groups.

    Traitors like Tony Perkins, who hate the American way of life should leave if they don’t like it. I think we should round up all these America-hating terrorist-lovers and send them to France or Afghanistan.

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