Judge William Pryor has an op-ed in the Wall Street Journal responding to recent arguments from Justice O'Connor concerning attacks on the judiciary (and perhaps to Judge Jones from the Dover trial as well, he has been saying much the same thing O'Connor has in speeches recently). Orin Kerr thinks Pryor got it "about right", but I think he didn't even begin to cover the serious concerns raised by the attacks on judicial independence over the last few years. He makes three arguments. The first:
Contemporary criticisms of the judiciary are relatively mild. To charge that the current disappointment regarding judges is unprecedented is to diminish the sacrifices that earlier giants of the judiciary endured. During the civil rights struggle, the ostracism and abuses suffered by federal judges in the Deep South -- including Frank Johnson, John Minor Wisdom and Skelly Wright -- were far worse than the current criticisms of judicial activism. Other historical moments also provide provocative counterexamples. As Justice Stephen Breyer stated several years ago, "We run no risk of returning to the days when a president (responding to [the Supreme] Court's efforts to protect the Cherokee Indians) might have said, 'John Marshall has made his decision; now let him enforce it!'"
First of all, the argument that it used to be worse is hardly a reason not to take what is going on now seriously. Secondly, the fact is that we are coming dangerously close to the very situation he speaks of today. And Pryor of all people should be aware of this given his involvement in the Roy Moore situation. Moore and his fellow travelers on the right argue with all seriousness that both the states and the Federal executive branch should simply ignore any Federal court rulings they think are wrong.
Now, let's not overstate the situation. Moore was shot down by more reasonable conservatives like Judge Pryor, who helped remove him from office despite agreeing with him that the Federal court ruling Moore was defying was wrongly decided. And even in Alabama, Moore was trounced in his run for governor and his little buddy Tom Parker was voted down in his run for Chief Justice of the Alabama Supreme Court as well. But Moore still has a fairly significant following among the religious right and he is invited to speak and taken seriously by some very popular conservative leaders. And Tom Parker actually managed to get Clarence Thomas to swear him, despite his views that even Pryor calls "bizarre".
Let's also bear in mind that Moore is not the only one making this argument. Republican Congressman Steve King of Iowa also suggested that if the court kept ruling in ways conservatives didn't like, the DOJ should refuse to comply with those rulings. And Tom DeLay, before he left Congress in well-deserved disgrace, was publicly threatening to cut the funding for the courts if they didn't fall into line and declaring that those judges would "answer for their behavior."
We've got Pat Robertson praying for God to strike down Supreme Court justices, presumably in his spare time in between sending hurricanes to Florida and plagues of locusts to Dover, Pennsylvania. We've seen the spectacle of one Republican Senator, himself a former judge, suggesting 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."
We've got Tony Perkins of the Family Research Council, declaring the courts the greatest threat to America, "greater than terrorist groups." We've seen a litany of religious right leaders calling 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." We've seen Jim Gilchrist, head of the Minutemen and a rising star among conservatives, saying that South Dakota, after passing a harsh anti-abortion law, should "defy any legislation or any ruling against their decision."
Perhaps most importantly, we have had multiple attempts in Congress to strip the courts of jurisdiction, most recently with the Military Commissions Bill, which attempts to do away with habeas corpus while denying the Federal courts the authority to hear any challenge to that unbridled abuse of power on the part of the executive branch. Not to mention the several court stripping bills that have been considered in Congress regarding almost anything to do with church and state. Every time the courts rule on a church/state issue against what the religious right wants, there's a new bill proposing to strip the courts of their authority to hear such cases. Some of them have even managed to pass the House.
So the fact is we have lots and lots of conservative politicians and religious right leaders who are calling for exactly the sort of action that Pryor seems to think only happened in the 1830s. And we have an executive branch that is absolutely hellbent on doing away with any court challenges to the limitless authority they claim to have in the name of the war on terrorism. This is not a hypothetical or historical anamoly, it's going on right now and it is putting our entire system of checks and balances in jeopardy.
Here's his second argument:
The judiciary has rendered some unjust decisions that deserved harsh rebuke. The judiciary is not perfect. The twin evils of slavery and segregation were, to say the least, exacerbated by two decisions of the Supreme Court. Justice John Marshall Harlan's dissent in Plessy v. Ferguson was prophetic: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case." The judgment of history has been equally unkind to the decision in Korematsu v. United States.
Well of course the Supreme Court has made some horrible rulings. No one, least of all me, is arguing that no one should criticize court rulings. I have aimed fierce criticism of Raich, Kelo and many other rulings that I think were boneheaded. But that hardly justifies the vitriolic attacks we see on judges, particularly from the right. It certainly does not justify the kind of rhetoric I cited above. And it would be insane to think it would justify prompting a constitutional crisis by ignoring rulings one doesn't like.
Judges must do more than respond to criticisms; we must exercise restraint. Judges have a unique responsibility to safeguard our independence. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in Plessy, "[T]he courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives." Perhaps, even today, we sometimes fail in that limited duty.
Again, this is just a "duh" statement. Of course judges should consider whether criticisms of their opinions are fair and accurate. But that criticism should come in the form of scholarly opinion, not threats of impeachment or hypocritical and empty screams of "judicial activism" every time a court rules in a manner one doesn't like. Crossing the line from criticism into calls for the executive branch to ignore court rulings and do as they please is not only irrational, it has the potential of, quite literally, bringing our entire republic crashing down around us.
I have to say I'm baffled by why Orin Kerr, a legal scholar I very much respect, would think Pryor's essay got it about right. It seems pretty much inconceivable to me that one could pretend to have addressed the recent attacks on judicial independence without even mentioning the constant threats of judicial impeachment, calls for ignoring court rulings and attempts to strip the court of jurisdiction in several areas of the law. The essay appears to me to be an exercise in beating up a very weak straw man while failing to even mention the real issues.
The attacks on the courts are little more than a corollary to the "take no prisoners" attitude fostered by the Republicans in Congress and the administrative. Bush and his supine supporter in Congress have tried to govern without the participation of the Democrats believing that partisanship is better than bipartisanship. Attacking the courts when they don't agree with the Republican/Bush agenda is a natural extension of that myopic view. And it won't go away until this country is run along bipartisan lines again.