Fighting and Winning the 'Judges War'

Is America a democratic republic, where the laws are made by elected legislators? Are we a federal republic, where social questions are decided by the states?

Or has America become a judicial dictatorship, where Supreme Court justices render final judgment on all social and moral issues — from the death penalty to abortion to homosexual rights to religious displays to the Pledge of Allegiance. This question of power lies behind the “Judges War” that has broken out in this capital.

Tom Delay (R.-Texas) ignited the fuse. When Terri Schiavo died after a Florida judge starved her for two weeks, the enraged House majority leader roared, “The time will come for the men responsible for this to answer for their behavior.” Declared Sen. John Cornyn of Texas, judicial seizures of power could lead people to “engage in violence.” At a conference on “Remedies to Judicial Tyranny,” Phyllis Schlafly, first lady of American conservatism, declared, “Tom Delay and Sen. Cornyn need to be backed up.”

These are “scary times for the judiciary,” warned The Washington Post. Things could “turn ugly.”

On “Fox News Sunday,” Cornyn conceded his thoughts had been “unartfully” crafted, but refused to back down. The Founders did not want judges making laws, he said, they wanted judges to enforce the laws made by elected legislators.

The issue of judicial tyranny is on the table. And if the GOP, with majorities in both chambers of Congress and its man in the White House, does not dethrone it now, it never will. But while conservatives’ hearts are in the right place, their heads are all over the place in deciding what to do.

Among the remedies proposed on Friday was the impeachment of Justice Anthony Kennedy, who authored the five-to-four decision to outlaw the death penalty for under-18 killers like John Lee Malvo, the Beltway Sniper. Kennedy thus personally reprieved 70 murderers on death row. Another idea, backed by President Bush, is for a constitutional amendment defining marriage as solely between a man and a woman.

Both proposals have one thing in common: Neither is going anywhere. The Senate is not going to impeach Kennedy for voting with four other justices, nor is a constitutional amendment to ban gay marriage going to get the necessary two-thirds of the Senate.

As William Quirk, author of Judicial Dictatorship, writes in April’s Chronicles: “The president needs 67 votes in the Senate, and he has 55, some of whom are squishy. The Senate … has been the graveyard for term limits, school prayer, flag-burning, busing and a balanced budget. Gay marriage will be buried along with all the rest. Last year, the president’s amendment got an embarrassing 48 votes. Has he found another 19?”

Nope, and we all know it.

Campaigns to impeach Kennedy and pass an amendment to ban gay marriage will raise oodles of direct-mail money. But that’s it. The right is spinning its wheels. Even conservatives are leery of amending the Constitution each time the high court hands down a new outrageous decree, as it has been doing since Earl Warren put his hand on the Bible, swore to defend the Constitution, then threw all the Bibles out of the schools.

What about reshaping the Supreme Court by naming new “strict constructionists”? Splendid idea, but problematic, as well.

First, it can take decades to change the court. There has not been a new nominee since Stephen Breyer, 11 years ago. Nor is there any guarantee the justice nominated will turn out as hoped. Eisenhower named Warren and Bill Brennan. Nixon named Harry Blackmun of Roe vs. Wade infamy. Ford’s nominee was ultra-liberal John Paul Stevens. Bush I named stealth liberal David Souter. Reagan named Anthony Kennedy.

Is the cause of reining in a renegade court hopeless? Are we fated to live under a judicial dictatorship? No. And the remedy is right there in the GOP platform and the Constitution. Under Article III, Section 2, Congress, with President Bush’s signature, can almost wholly restrict the jurisdiction of the Supreme Court.

In 2004, the House voted 233 to 192 to take gay marriage off the Supreme Court docket and by 247 to 173 to remove the Pledge of Allegiance. If the Senate will go forth and do likewise, the Supreme Court’s right of review of laws in both areas would be ended.

On Jan. 1, Chief Justice Rehnquist in his State of the Judiciary Address noted with alarm that Congress had begun to use its power under Article III. He did not deny that Congress had that power.

Will Bush press the Senate to join the House in restricting the court’s jurisdiction over gay marriage and the Pledge of Allegiance? If not, he is not serious. And if the Senate will not follow the House lead, conservatives should stop wasting time and money on their campaigns. The battle against judicial dictatorship is winnable. And there is no excuse for not fighting it.