Freedom Undone in the Court

There I sat, blinking under the fluorescent lights in the auditorium style classroom during my constitutional law class. I had gone to law school because I wanted to learn how to be a lawyer. I wanted to learn how to “think like a lawyer.” That's what all the marketing brochures from the admissions offices in law schools all over the country promise incoming students. I didn't know exactly what it meant to think like a lawyer. I assumed I would be asked to use reason and logic to apply the facts of a particular occurrence to the law that governed such an occurrence. Nothing overly complicated. I discovered my assumption could not be further from the truth.

The subject was the Fifth and Fourteenth Amendments to the United States Constitution. At least, that was the subject stated in the textbook and repeated by the professor. The real subject was substantive due process rights, which include such things as the 'right' to have an abortion and, now, to engage in homosexual acts. The case law we were studying all cited the Fifth and Fourteenth Amendments as support for their rulings. The problem is that neither the Fifth nor the Fourteenth Amendments say anything whatsoever about substantive due process rights. Then it occurred to me what thinking like a lawyer was all about: I needed to do away with reason and logic and just answer my professor's questions by regurgitating whatever the Supreme Court majority or plurality opinion said. The Constitution was not important, only what the prevailing number of justices said about the Constitution mattered.

I felt tricked. Here I had come to school thinking I would get an education on how to be a lawyer, and I ended up being force-fed the personal ideology of my law school professors' favorite Supreme Court Justices. I am reminded of C.S. Lewis' The Abolition of Man. Lewis criticizes a couple of writers—he gives them the pseudonyms Gaius and Titius—of a book on English composition and grammar. Instead of writing on English composition and grammar, Gaius and Titius have apparently used this subject as the occasion to advance their own personal philosophical agenda. Lewis writes, “[Gaius and Titius] may be intending to make a clean sweep of traditional values and start with a new set. That position will be discussed later. If it is the position which Gaius and Titius are holding, I must, for the moment, content myself with pointing out that it is a philosophical and not a literary position. In filling their book with it they have been unjust to the parent or headmaster who buys it and who has got the work of amateur philosophers where he expected the work of professional grammarians.” It was like Lewis had sat through my constitutional law class. Where I was expecting the work of professional educators of law, I received the work of biased and amateur philosophers. None of these professors had Ph.D.'s in moral philosophy or anthropology or theology, and yet they were trying to tell me that the Supreme Court rightfully used its substantive due process precedent to define when life begins, to prescribe the times and places that I may or may not pray to God, and to otherwise implement whatever social change the justices thought was necessary.

It's not much better under the fluorescent lights of the courtroom either. In The Supremacists: The Tyranny of Judges and How To Stop It, Phyllis Schlafly exposes certain judges and justices as traitors to their office. She lifts up their robes and lets us see that underneath all the pomp and circumstance sit amateur, undisciplined philosophers more concerned with their political, social, or personal agendas than upholding the Constitution. Schlafly states the issues in the starkest of terms: “The assault by the judicial supremacists against the Constitution and the rule of law is the most serious issue facing our political system today. If unchecked, judicial supremacy will continue to grow like a cancer and destroy our republic” (viii). “Judicial supremacists” is Schlafly's label for those judges who have forsaken their proper role as judges and usurped the legislature's exclusive authority to make law. Judicial supremacists are the activist judges that President Bush has rightly accused of undermining democracy by legislating from the bench and trying to remake the culture of America by court order. While the cancer of the judicial supremacists has not corrupted American society enough to threaten an immediate demise of the republic, Schlafly has not overstated the seriousness of this problem.

Schlafly points that out everything from speech in public about God to U.S. sovereignty, from taxation only with proper representation to fair and impartial elections, even from basic morality to common decency, all these could be wiped away by a judicial supremacist with no more effort than it takes to pound a gavel. Schlafly identifies the seed of this problem being planted in the nefarious and abominable opinion of the Dred Scott case. Although it cited Marbury v. Madison as the primary authority for their activism, the Warren court of the 1950s and 1960s used the reasoning of the Dred Scott case to usher in the reign of judicial supremacy and give us such debacles as Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas. These judges have set themselves up as tyrants in what is supposed to be the land of the free and the home of the brave.

True to the promise made in her title, Schlafly describes how the United States can get out of this mess. She begins with a brief prelude on the necessity of reforming the Senate rules regarding the confirmation of federal judges. Skeptical that this will not be enough though, Schlafly encourages Congress to step up and use its constitutional power to restrict the courts' jurisdiction over certain kinds of cases, revamp the entire court system under the Supreme Court itself, and restore the balance of power among the three branches of the federal government. In other words, she is calling for a complete reworking of our entire governmental infrastructure. While we are at it, we might as well ask Congress to ban all hurricanes from coming into Florida. Schlafly's solution is so unrealistic that it is as disheartening as it is disappointing.

Perhaps Schlafly is not to blame though. There does not seem to be any solution that can be justified on the basis of the Constitution other than the major overhaul that Schlafly proposes. Perhaps the subject of judicial supremacy cannot be treated in a manner that will at the very least keep the public from envisioning a sinking ship as the dominant image for the future of the United States. In any event, The Supremacists includes an excellent diagnosis and risk assessment of the problem created by the run-away imperiousness embraced by critical members of the current American judiciary. If you are in the mood for reading about a condition of the American society that will probably outrage you and then leave you feeling completely impotent to do anything about it, The Supremacists is the book for you.