Phyllis Schlafly. The Supremacists: The Tyranny of Judges and How to Stop It. Revised and expanded. Richard Vigilante, 2006. See here to purchase the book. Go here to download individual chapters for free.
Phyllis Schlafly was a conservative activist and a lawyer.
The Supremacists was originally published in 2004. It is a spirited criticism of liberal judicial activism. For conservative critics, judicial activism goes beyond merely interpreting the law according to the original intent of its framers. Instead, liberal activist judges illegitimately legislate their policy preferences from the bench.
Schlafly discusses issues in which she believes this is evident. According to Schlafly, liberal activist judges have banned religion from the public square, redefined marriage to include same-sex unions, followed foreign laws and treaties in making decisions about American policy, allowed eminent domain for economic development without just compensation, overturned anti-pornography laws, mandated radical feminism, handicapped law enforcement, limited legitimate application of the death penalty, invited illegal immigration, changed agreed-upon election rules in mid-game, placed themselves over parents as the arbiters of the best interests of children, and imposed taxes that have not been legislated.
Schlafly does not trace the origins of judicial activism to Marbury vs. Madison (1803), for the judicial review that Chief Justice John Marshall’s implemented there was modest and conservative. Rather, she traces it to the pro-slavery Dred Scott decision, which went beyond applying the law towards establishing a policy on slavery for the nation. Schlafly believes that the Warren Court of the 1960’s amplified judicial activism. She traces this, not to Brown vs. the Board of Education, but to a lesser-known anti-segregation case: Cooper vs. Aaron. Schlafly believes that this decision moved the court further towards making policy, which was unnecessary to overturn segregation.
In the final chapter, Schlafly extensively proposes ways that the power of the judiciary can be checked. She contends that Article III of the Constitution explicitly allows the U.S. Congress to limit the jurisdiction of the courts, and it has exercised that right in the past. Some of her proposals are procedural and common-sense. They are designed, for example, to add more checks and balances to the ability of one life-time appointed federal judge to create a policy for the entire nation. Should one person have all that power?
Here are some thoughts:
A. Schlafly’s training as a lawyer shines in this book. She extensively cites case law and the nuances therein, albeit in a narrative and easy-to-understand manner. She also cites law journals and quotes Supreme Court decisions and dissents. Information about those cases and writings is available on the Internet. I did not fact-check everything that Schlafly said, but I did look up parts of Sex Bias in the the U.S. Code, a 1977 book that Ruth Bader Ginsburg co-authored. In some cases, I thought that Schlafly’s interaction with that text was slightly unfair, but some of what Schlafly said about it was surprisingly and remarkably accurate, in terms of the radical nature of what Ginsburg recommended (i.e., openness to legalized prostitution).
B. Schlafly cites the text of the U.S. Constitution to support her points. Against the view that the Constitution gives felons a right to vote, Schlafly notes that Section 2 of the Fourteenth Amendment allows limitation of the franchise for those who commit crimes. There is also her observation that Article III gives Congress the authority to limit the courts.
C. Schlafly also delves into U.S. history, as she presents quotes by Thomas Jefferson and Abraham Lincoln in favor of a limited judiciary.
D. Schlafly does well to highlight possible liberal inconsistencies. Liberals demand conformity to “precedent” when it comes to Roe vs. Wade, yet liberal judges have made decisions that overturn precedent. Liberal judges consult foreign laws and customs for guidance, but only when that agrees with their point-of-view. They do not follow the anti-abortion and anti-homosexuality practices of Islamic countries, for example.
E. There is one area in which Schlafly is slightly inconsistent. On the one hand, Schlafly argues that courts should make their decisions on a limited case-by-case basis rather than trying to create a comprehensive policy for the entire nation. On the other hand, she criticizes 5-4 decisions of the Supreme Court because they are nebulous about what the law for everyone actually is.
F. During the 2004 election, liberals were criticizing computerized voting, which did not leave a paper trail. In some cases, the computers assigned a vote to the Republican when the voter chose a Democrat. Interestingly, Schlafly was critical of computerized voting and preferred the traditional form that left a paper trail. She states that in the December 2000 Phyllis Schlafly Report. As far as this book is concerned, she criticizes liberals for trying to transition to a computerized system during the election to recall Gray Davis as governor of California.
G. In criticizing government recognition of same-sex marriage, Schlafly says that homosexuals can cohabit without the government affirming same-sex marriage. Yet, she opposes courts striking down anti-sodomy statutes.
H. The effects of court decisions do play a role in Schlafly’s arguments. For Schlafly, society becomes a worse place when people are not allowed to execute monsters, just because they committed their heinous crimes before they turned 18. It is not a good thing for minors to be exposed to pornography at the supermarket. Schlafly does not always convincingly argue, at least in this book, that her worldview is more beneficial to society. Why should it be acceptable to make atheists feel excluded through a formal public acknowledgement of religion? Why can’t a child find positive support in a same-sex family? Who says that parents consistently make the best decisions about what is in their child’s interests?
I. There is a part of me that sympathizes with “liberal activist” judges. There are three reasons for this. First, culture changes, so why should we be bound by the mindset of the eighteenth century? I remember a PBS documentary about the Constitution, in which someone said that the Constitution itself recognizes this reality: the Eighth Amendment, for instance, bans cruel and unusual punishment, but what is “unusual” may change with the times. Why should courts feel bound by what was “unusual” in the eighteenth century? Second, an activist judiciary checks state and local governments from becoming oppressive. Should a state government seriously be allowed to ban contraception for married couples, or to put homosexuals in jail under anti-sodomy laws? There is such a thing as tyranny of the majority. Third, a hyper-literal interpretation of the law can end up making rights meaningless. For example, the Warren Court has been criticized by the right for handicapping law enforcement, but I think that it added teeth to the Bill of Rights’ provisions for the rights of the accused; it made those rights a reality, not something on paper that can be easily circumvented.
J. At the same time, I think that the right makes legitimate critiques of judicial activism. Sure, culture changes, but, if the left cannot effect its agenda through the legislative process, perhaps that indicates that culture has not changed as much as it wants. And what can check the judges? Should they seriously have the final, ultimate say about controversial issues?
I am giving this book five stars, not because I agree with all of it, but because I found it informative.