September 14, 2004
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Courts run amok?

By Bruce Fein

    By Phyllis Schlafly
    Spence Publishing, $24.95, 192 pages
    According to Phyllis Schlafly, judicial tyranny stalks the nation like a colossus, issuing with abandon constitutional encyclicals voiding legislative enactments and executive decrees. In "The Supremacists: The Tyranny of Judges and How to Stop It," she seeks to summon into being a popular crusade to defeat a long train of asserted judicial usurpations. The prime weapon would be depriving the U.S. Supreme Court of jurisdiction to interpret the Constitution.
    Congress would legislate with no restraints, and constitutional interpretations would vary from state to state. These drastic measures — akin to President Franklin D. Roosevelt's discredited court-packing plan — are urgent, the author exhorts, because the Supreme Court repeatedly flouts majority sentiments. Indeed, a democratic crisis is discerned: "We must save self-government from the rule of judges. The whole future of America depends on it."
    But the alarmism is unconvincing. Judicial abuses in constitutional interpretation should be answered by: informed criticism that transforms public opinion; new appointments as vacancies arise; and constitutional amendments in egregious cases. Presidents Franklin D. Roosevelt and Ronald Reagan were models in the bully pulpit and in judicial appointments. Both changed the complexion of constitutional law.
    Contrary to the author, the Founding Fathers most feared majority oppression. As Thomas Jefferson reminded, tyranny by the majority is tyranny nonetheless. The father of the Constitution, James Madison, worried in Federalist 48 about legislative usurpations, and advised: "[I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."
    As a member of the House of Representatives, Madison celebrated the independent and life-tenured federal judiciary as a bulwark protecting the national Bill of Rights. He drew on the sad experience of state bills of rights, writing to Jefferson in 1788: "Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia, I have seen the bill of rights violated in every instance where it has been opposed to a popular current."
    The Founding Fathers did not ignore the danger of judicial excess. Constitutional amendments, the appointment of new justices by the president with the advice and consent of the Senate, and the potential of impeachment for high crimes and misdemeanors were calculated to curb the threat. These checks have generally kept the Constitution in the middle of public opinion, neither a locomotive nor caboose.
    For more than two centuries, the Supreme Court has never persisted in affronting popular orthodoxies. Eight constitutional amendments have reversed Supreme Court decisions. The 18-year-old voting rights amendment was ratified in a mercury-footed 100 days. FDR's eight Supreme Court appointees tied constitutional doctrines regarding economic and property rights to prevailing, albeit misguided, Keynesian orthodoxies. The Court's superceded liberty of contract creed, which had dominated constitutional law from 1897 to 1937, similarly echoed then-ascendant Social Darwinist thought praising survival of the fittest.
    The racist-inspired "separate but equal" doctrine of Plessy v. Ferguson (1896) mirrored the prevalent racism of the times. When the high court ended that odious constitutional epoch with Brown v. Board of Education (1954), it was following, not leading, national popular sentiments, epitomized by President Harry Truman's 1948 desegregation of the armed forces and the 1948 Republican Party platform that championed equal rights for blacks.
    The ill-conceived Roe v. Wade (1973) abortion decree outlandishly construed privacy protected by the Constitution. But the precedent was not then, nor is it now, substantially discrepant with popular opinion. Abortion restrictions were falling in legislative halls like tenpins in 1973. In 1967, California's then-Gov. Ronald Reagan signed an abortion statute that anticipated the Roe holding.
    Over the 31 years post-dating Roe, neither the House nor the Senate has even proposed a constitutional amendment for ratification by the states.
    During the 1960s and 1970s, when Great Society permissiveness was in vogue, the high court predictably sallied forth with a series of decrees handcuffing the police and prosecutors and tending to excuse criminality. But when public opinion turned in favor of accountability and punishment, the court's criminal-justice decisions marched in the same direction, creating, for example, exceptions to the exclusionary rule.
    "The Supremacists" is engaged in a fool's errand. Widespread and intense popular resentment against the Supreme Court is chimerical. Even when its decisions are indefensible as constitutional law, they customarily give expression to contemporary orthodoxies, no matter how fallacious or obtuse.
    To change the course of constitutional law, fashionable intellectual currents must be persuasively challenged. Alternatives, such as curbing the jurisdiction of the Supreme Court, are like throwing a snowball into Dante's inferno and expecting winter to emerge.
    Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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