Judicial Activism: the Biggest 2002 Election Issue — October 2002

Activist judges have been advancing a liberal agenda that opposes religious values, conventional morality, the separation of powers, our structure of federalism, and even the right of American citizens to govern ourselves. The federal courts have been replacing our constitutional system with what we call the Imperial Judiciary.

The U.S. Constitution gives “we the people” the power to reverse this course by electing a U.S. Senate that will confirm the good judges nominated by President George W. Bush. He has done his job by nominating judges who respect the Constitution, but the Daschle-Leahy Democrats, who control the U.S. Senate, have refused to confirm them, or even to allow the Senate to vote on most of them.

Bill Clinton appointed almost half of all federal judges now serving, and federal judges serve for life. In addition to the 373 Clinton-appointed judges, federal judges appointed by Presidents Jimmy Carter and Lyndon Johnson are still deciding cases.

The federal courts today are precariously balanced between activists and constitutionalists. The election on November 5th is our one big chance to curb the power of activist judges and restore balance to the courts.

Just this year, we saw a stunning example of how off-course the Imperial Judiciary has gone when the Ninth Circuit U.S. Court of Appeals ruled that it is unconstitutional to recite the Pledge of Allegiance in public school. The atheists probably thought that after their string of court victories banning prayer and the Ten Commandments, the time was ripe to get rid of God in the Pledge of Allegiance. An activist judge gave them the decision they wanted.

The Pledge of Allegiance decision may turn out to be very influential, but not in the way the judge planned it. This outrageous decision should galvanize Americans to call a halt to the damage that activist judges have been inflicting on us for decades.

Let’s remember how the Pledge of Allegiance issue helped to defeat Michael Dukakis and elect the elder George Bush as President of the United States in 1988. Dukakis was a typical liberal from Massachusetts who shrank from flag-waving symbolism. He had vetoed a law to require public school teachers to lead the Pledge of Allegiance every morning. George Bush made this a major campaign issue and rubbed Dukakis’s nose in his own stupidity. The Pledge of Allegiance became one of the issues that elected Bush.

The American people care about the Pledge of Allegiance. A Newsweek poll found that a phenomenal 87% of Americans support keeping the words “under God” in the Pledge. This is a great issue for Senate candidates to talk about. We want to vote for Senators who will stand tall for the Pledge of Allegiance and who will confirm judicial nominees who believe that “under God” should remain in the Pledge.

When Justice Clarence Thomas, the Court’s strongest voice in behalf of constitutional government, spoke to Eagle Forum’s annual conference several years ago, he explained that when a case is presented to the court, judges can make their decisions in one of two ways. They can look to the United States Constitution and see whether it authorizes or forbids the disputed action, or the judges can impose their own social views on us dressed up with self-serving jargon. Unfortunately, too many judges prefer the latter, rather than accepting the authority of the Constitution. Some activist liberal judges seem to think they are free to write their own views into the law.

Someone once asked Dwight Eisenhower if he had made any mistakes as President that he later regretted. Ike replied: Yes, two, and they’re both on the Supreme Court. Presidents Richard Nixon, Ronald Reagan and the first George Bush all made similar mistakes. In fact, seven of the nine current Supreme Court Justices were appointed by Republican Presidents, and a Nixon-appointed judge wrote the infamous Pledge of Allegiance decision this year.

So far, President George W. Bush has a good record of judicial appointments. The problem is that the Democratic Senate won’t confirm them.

“All” legislative powers are vested in the Congress, according to the U.S. Constitution. That means no legislative power is granted to the courts. Yet, over the past 50 years, judges have become increasingly activist, writing their own ideas and attitudes into the law.

Some of our most far-reaching social, economic and political decisions have been made by judges rather than by our elected representatives. These include decisions about criminal procedures, prayer and the Ten Commandments in public schools, internal security, pornography, forced busing, racial preferences and quotas, term limits, abortion, and election procedures.

The federal courts have invented new “rights” such as the right to abortion and welfare payments. The federal courts have arbitrarily overturned the votes of the people in California, Colorado, Arizona and Washington State who had the old-fashioned belief that they could exercise self-government. The federal courts have set themselves up as a super-legislature and grabbed authority to micromanage schools, prisons, hiring standards, and legislative reapportionment.

While the American people typically have the opportunity to correct a bad election result four years later, a bad legal precedent may last forever.

The trouble with some judges is that once they are appointed to the federal judiciary, they seem to think they have been anointed to rule over us lesser mortals. They just write their own opinions into the law. Some of these activist judges are very arrogant about saying this.

Justice William J. Brennan in a 1982 speech revealed the mindset of these liberal activist judges. He praised what he called “the evolution of constitutional doctrine.” Brennan said that in previous times, “the function of law was to formalize and preserve (accumulated) wisdom,” but “over the past 40 years Law has come alive as a living process responsive to changing human needs.” He bragged that the law has become “a moving consensus.” Brennan added, “our constitutional guarantees and the Bill of Rights are tissue paper bastions if they fail to transcend the printed page.”

Justice Brennan made that all up. There is nothing in the U.S. Constitution about evolution, a living process, changing needs, or transcending the printed page.

A striking current example of how activist judges engage in the “evolution” of the so-called “living” Constitution was provided by the U.S. Supreme Court in June this year. In Atkins v Virginia, Justice John Paul Stevens rewrote the Eighth Amendment to outlaw capital punishment for those with low I.Q. scores. There isn’t any basis in the Constitution for his decision. Justice Stevens based it on what he called “a national consensus,” for which he cited “polling data.” Stevens was appointed by the so-called moderate Republican, President Gerald Ford.

Justice Stevens apparently thinks that our laws can be made by public opinion polls instead of by our elected representatives. Justice Scalia properly rebuked him, retorting that the Stevens decision really was based on “nothing but the personal views” of the Justices.

While Republican Presidents have made major mistakes in the past, the November 2002 election offers a clearcut choice on the issue of the Imperial Judiciary. The Democratic Senate is holding up President Bush’s nominees because Senators Tom Daschle and Patrick Leahy demand Clinton-style judges who believe in constitutional “evolution.” Most Americans, on the other hand, want judges who rely on the United States Constitution as their point of reference, and we desperately need Republican Senators who will confirm Bush’s nominees.

The Supreme Court’s effect on what is taught in the public schools, starting with expelling prayer and Bible reading in 1962 and 1963, has been disastrous. An 1892 Supreme Court decision clearly spelled out that “This is a religious nation. . . .” (Church of the Holy Trinity v. United States). Even FDR-appointed liberal Supreme Court Justice William O. Douglas wrote as late as 1952 that “We are a religious people whose institutions presuppose a Supreme Being” (Zorach v. Clauson). But since 1962 the federal courts seem determined to eliminate every mention of religion from the schoolhouse.

The good people in Kentucky raised private funds to have a simplified version of the Ten Commandments nicely framed and placed in every classroom in Kentucky, but in 1980 the U.S. Supreme Court banned the Ten Commandments from the public school classroom (Stone v. Graham). (A copy of Kentucky’s framed Ten Commandments is hanging at Eagle Forum Education Center in St. Louis.) By the year 2000, the Court even banned prayers before football games (Santa Fe Indep. Sch. Dist. v. Doe).

Out went the Ten Commandments, in came condoms. Out went the Cross and pictures of Christ, in came drawings of apes pretending to walk like humans. Out went Adam and Eve, in came Heather Has Two Mommies. Out went Easter, in came Earth Day. Out went teachings against homosexuality, in came teachings in favor of homosexuality.

There are many examples of Supreme Court Justices writing their own opinions into the Constitution. In United States v. Virginia (1996), the Supreme Court ordered women admitted to Virginia Military Institute, which had been constitutionally all-male for 150 years. Without any authority from the Constitution, Clinton-appointed Justice Ruth Bader Ginsburg wrote her radical feminism into the law, and even smeared as closed minded those who believe there are inherent differences between men and women.

In Romer v. Evans (1996), the Supreme Court overturned the majority of the people of Colorado who, by statewide referendum, had prohibited localities from granting special status to homosexuals. Without any authority from the Constitution or citation of any applicable legal precedent, the Court ruled that Colorado’s Amendment 2 was totally without a rational basis and was “born of animosity” toward homosexuals. It would be more accurate to say that the Supreme Court’s own decision was without a constitutional basis and was born of animosity toward traditional moral standards and the people who hold them sacred.

Supreme Court arrogance reached new heights in Planned Parenthood v. Casey (1992), when the Court linked its own legitimacy with abortion in a circular argument. Although Roe v. Wade (1973) had no basis in the Constitution, the Court in Casey urged that Roe be cast in stone lest “the Court’s legitimacy be undermined.” In other words, in order to maintain the Court’s legitimacy, we are told we must not criticize an illegitimate decision!

Monkey see, monkey do. Following the lead of the Supreme Court, some lower federal courts manifested their disdain for the popular will by arrogantly overturning the wishes of the majority of the voters expressed in statewide referenda. A single Jimmy Carter-appointed federal judge (Mariana Pfaelzer) in 1994 nullified California Proposition 187, which would have prohibited giving taxpayer benefits to illegal aliens. Proposition 187 received five million votes, but it was nullified by only one federal judge and kept permanently inoperative.

Another federal judge ruled that Penthouse magazine and other sexually explicit magazines and videos have a First Amendment right to be available in subsidized stores on military bases. By the ruling in General Media Communications v. Perry (1997), the military was enjoined from obeying the Military Honor and Decency Act of 1996, which forbade such materials on military bases. Fortunately, the Second Circuit U.S. Court of Appeals reversed this decision, declaring this Act a reasonable, viewpoint-neutral regulation of speech in a non-public forum.

In a 2-to-1 ruling in Karen Finley et al. v. National Endowment for the Arts (1996), the Ninth Circuit U.S. Court of Appeals held that it is unconstitutional for a government agency to consider “decency and respect” for American values when it doles out the taxpayers’ money. The winners in this case were Karen Finley, the woman who became famous by parading on stage dressed in nothing but a layer of chocolate, three others whose nude performances centered on homosexual themes, plus, of course, the American Civil Liberties Union. The losers were the American taxpayers. The Supreme Court reversed this decision in 1998, too late to make a difference.

It was a Lyndon Johnson-appointed judge, still on the court, who in 2002 ordered the forcible drugging of a prisoner who has never been tried or convicted, but has been kept in prison for nearly five years, longer than his sentence would have been if he had been convicted (United States v. Sell). This decision is now on appeal to the Supreme Court.

The federal judges appointed by Clinton, Carter and Johnson are the biggest threat to constitutional self government today. These activist judges have been writing liberal opinions into the law, usurping legislative functions, and depriving Americans of our rights of self-government. They will be able to continue doing that for the rest of their lives unless we can balance the courts with judges appointed by President George W. Bush.

The most important issue in the election on November 5th is whether or not we elect enough U.S. Senators to confirm constitutionalist judges. Senators should ascertain a prospective judge’s commitment to a philosophy of fidelity to the Constitution by requiring him to state whether he believes that “under God” should be retained in the Pledge of Allegiance. It is the Senate’s duty to protect America from judicial usurpation and to restore our constitutional balance of powers among the three branches of our government. Since law-abiding citizens can’t hold the life-tenured radical judges accountable, grassroots groups everywhere should hold accountable every Senator who fails to act to reign in the Imperial Judiciary.

The United States Constitution contains within it other remedies to solve our constitutional problems. The federal courts have unconstitutionally grabbed entirely too much power and it’s the duty of Congress to use its constitutional powers to curb the imperial judiciary. Congress should limit the jurisdiction of the federal courts, as authorized in Article III of the U.S. Constitution.

For example, Congress should prohibit the federal courts from ordering any government at any level to raise taxes under any circumstance. One of the Supreme Court’s most arrogant decisions, Missouri v. Jenkins (1990), was the federal court’s imposition of increased property taxes in Kansas City to pay for the world’s most extravagant public school facilities. The Court simply ignored one of the Constitution’s clearest directives, “All Bills for raising Revenue shall originate in the House of Representatives” (Article I, Section 7), and the words of James Madison in Federalist No. 48: “The legislative branch alone has access to the pockets of the people.” (Incidentally, it is now abundantly clear that the court-ordered billion dollars spent to build the most expensive school system in the world has totally failed to improve test scores.)

Congress should pass Rep. Todd Akin’s (R-MO) bill to withdraw jurisdiction from the courts over cases regarding the Pledge of Allegiance to the Flag. This is a great issue on which Congress should step up to the plate, exercise its Article III authority, and regulate the jurisdiction of the federal courts. Ask your Member of Congress to co-sponsor the Akin bill, H.R. 5064.

Congress should take away the power of a single federal judge to issue an injunction to overturn a referendum and prevent enforcement of the voters’ wishes during the years that a case winds its way through the court system. It is an offense to the Rule of Law that a single federal judge has again and again nullified initiatives passed by a majority of the voters.

Congress should prohibit federal judges from trying to micromanage public schools, prisons, or mental hospitals. Congress should stop the federalization of crimes. Whenever Congress enacts a new federal criminal statute, it enlarges the power and authority of the federal courts and provides more opportunities for judicial activism. Congress has created more than 3,000 federal crimes, many of them redundant with state laws.

According to former Attorney General Ed Meese, federalizing crime contradicts constitutional principles. The U.S. Constitution gave the Federal Government jurisdiction over only three crimes: treason, counterfeiting, and piracy on the high seas, and left responsibility for criminal law in the domain of the states. General Meese accurately says that federalizing crime increases “the potential for an oppressive and burdensome federal police state.”

The federal courts have fundamentally altered our Separation of Powers and effectively changed the definition of “the supreme law of the land” from “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof” (Article VI) and substituted “whatever a federal judge decides this week.”

This situation is intolerable, and it is the duty of Congress to use its constitutional powers to restore the balance of power among the three branches. The only way to do this is to elect a Republican Congress and especially a Republican Senate on November 5th.

If we truly believe in self-government, grassroots Americans must take a major role in reforming the Imperial Judiciary. Private citizens should take an interest in court decisions, discuss them, comment on them, and ask television and radio talk shows to include them in their programming.

One of these days, and it could be tomorrow or the day after, a vacancy on the Supreme Court will occur. We will then face the Mother of all Battles. The result will be as important to America’s future as who was elected President. You need to be informed and engaged in the battle, and you need to be part of the action so that we don’t have a repeat of what happened when Bush’s splendid nominees, Charles Pickering and Priscilla Owen, were rejected on a straight party-line partisan vote in committee without allowing the full Senate to vote.

Since David Horowitz became disillusioned with the radical goals of the left, he has been trying to teach Republicans and conservatives how to combat the left’s tactics. He asserts that “the left-wing activists who now make up the core of the Democratic Party understand the nature of political war in our democracy, and Republicans quite simply do not.”

Horowitz is exasperated with Republican Party ineptitude. “The Republican Party,” he writes, “claims to be the party of personal responsibility, yet it has become a party that takes no responsibility for the predicaments in which it finds itself. Instead, Republicans blame bias in the media, or the liar [Clinton] in the White House, or their unprincipled opponents, or even the immorality of the American people to explain their defeats.”

His warning is stern: “In political warfare, if only one side is shooting, the other side will soon be dead.” Republicans should study Horowitz’s book The Art of Political War in order to gird for the next judicial nomination battle that will surely come.

In the granddaddy document of limited government, the Magna Carta signed at Runnymede in 1215, King John promised, “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”

You and I expect at least as much from our President and Senators as our forefathers got from King John. It’s time for grassroots Americans to wake up and realize how the federal courts have grabbed powers that violate the Separation of Powers and turned themselves into an Imperial Judiciary. Tell your Senators and Congressmen you want them to get moving immediately with a coordinated plan to curb the Imperial Judiciary.

November 5th is our big opportunity to restore our constitutional form of government by electing Senators who will confirm good constitutionalist judges and Representatives who will curb the power of the federal courts.

Phyllis Schlafly, B.A., M.A., J.D., is a member of the Bar in Missouri, Illinois, the District of Columbia, and the U.S. Supreme Court.