Disorder in the Court

On May 12, leading lights of the conservative movement threw a gala banquet at the Capital Hilton in Washington to honor House Majority Leader Tom DeLay in his moment of need. After dessert and a closing invocation by Family Research Council head Tony Perkins, the crowd of almost 800 rose up and began shuffling out of the ballroom. As DeLay shook hands and signed some autographs from his perch on the stage, a tall, sturdy man, clearly a chum of the majority leader's, approached and presented a large framed plaque. Its text was a declaration of support, and a call to arms.

“As national conservative leaders,” it read, “we the undersigned decry the attacks on House Majority Leader Tom DeLay's character and the impugning of his motives. We endorse his call to rein in a runaway judiciary.” The undersigned also seconded DeLay's contention “that judicial activism has become the greatest threat confronting representative government,” finally calling on Congress to save the country “from tyrannical judges who currently operate free of any restraints.”

Signatories of the “Conservative Leadership Declaration in Support of Tom DeLay” included old standbys like Jerry Falwell, Paul Weyrich, and Phyllis Schlafly, as well as the new guard of leaders occupying high posts of contemporary influence on the religious right, such as James Dobson of the Colorado Springs–based mega-lobby Focus on the Family. The man who presented the declaration to his longtime friend DeLay was another such leader, Rick Scarborough, former pastor of the First Baptist Church outside Houston, founder and president of the advocacy group Vision America, and head of the newly formed Judeo-Christian Council for Constitutional Restoration (JCCCR).

What Scarborough, Perkins, Dobson, and their allies have conjured in the past few months is a political atmosphere rife with a level of demonization and intimidation of the American judiciary unseen in decades. Beyond the outré judge-bashing rhetoric lies a newly explicit agenda that shifts the focus away from the specific litany of classic religious-right causes and onto the structures of the judiciary itself and the separation of powers -- established both by the Constitution and by 1803's Marbury v. Madison decision -- that undergird its independence.

The Christian right's current preoccupation with the judiciary may be frightening, and no one should doubt the danger of serious short-term damage. But for the long term, the movement's fixation on the courts is actually a reflection of serious political weakness. Even at this moment of peak electoral strength and maximum representation in office, the religious right has little by way of policy achievements to show for its efforts. The movement's turn to the judiciary reflects that predicament and is an attempt to win judicially what it hasn't been able to achieve legislatively. Sound familiar? This is, ironically, just where liberalism found itself in the 1960s and '70s, when the right's backlash first set in. And, indeed, a contemporary progressive discussion over the proper role of the courts reflects this belated realization among many liberals -- that a preoccupation with the judiciary is often the last resort of political losers. It may be a while yet before the religious right learns the same lesson. Say amen, somebody.

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Though it seemed to come out of nowhere in the explosion of invective and demagoguery occasioned by Terri Schiavo's ordeal, the current campaign against the judiciary really began to coalesce two years ago in the wake of another semi-disreputable media spectacle. When Alabama Chief Justice Roy Moore defied court orders in 2003 to remove a granite monument of the Ten Commandments he had installed in the state Supreme Court's rotunda, the ensuing circus gave rise to several of the major players in the new campaign.

Scarborough smelled the opportunity and got involved early on. The Pearland, Texas, native was a veteran of the bitter struggles between conservatives and moderates within the Baptist General Convention of Texas during the '90s. His political activities won him an early ally in DeLay, who calls him “one of my closest friends” and has frequently touted his organizational acumen.

As the Alabama comic opera unfolded, Scarborough's group, Vision America, sponsored a national petition campaign for congressional intervention in the case and held a series of press conferences with religious-right leaders like Perkins and Alan Keyes. That September, Moore met with DeLay in Washington to discuss possible legislative action and conferred with his own congressman, conservative Christian stalwart Robert Aderholt. The preceding spring, Aderholt had reintroduced an old measure of his, the first of a new crop of “court-stripping” bills that have dotted the House agenda in the last two years; this one would rescind judicial jurisdiction over all cases related to display of the Ten Commandments. (The summer of 2004 would see the House pass two more religious-right court-stripping acts, which have yet to be taken up by the Senate.)

The mother of all such bills soon followed, as another direct result of the Alabama controversy. Moore's lead attorney was Herb Titus, a longtime activist who had been the vice-presidential candidate of the far-right U.S. Taxpayers' Party in 1996. Before that, he had served for years as dean of the law school of the Pat Robertson–founded Regent University. (Too conservative even for Robertson, Titus was reportedly fired for refusing to disavow his belief in the explicitly theocratic doctrine of Christian Reconstructionism.) Following the final removal of Moore's monument in late 2003, Titus took the lead in drafting the Constitution Restoration Act for Aderholt.

The bill would prevent courts from hearing any cases concerning a government entity or official's “acknowledgment of God as the sovereign source of law, liberty, or government,” and would also prohibit any federal judge from drawing upon international law in rendering constitutional decisions. (The latter provision was motivated by Supreme Court Justice Anthony Kennedy's majority opinion in 2003's Lawrence v. Texas case, which infuriated conservatives by making reference to the European Court of Human Rights in arguing to overturn Texas's anti-sodomy law.) The bill would make breaches of these two provisions impeachable offenses. In February of 2004, Moore, Aderholt, and Alabama Senator Richard Shelby held a press conference to introduce the bill. By the end of that year, Aderholt's House measure had 37 sponsors.

The constitutionality of court-stripping bills like this one is a matter of some dispute. Congress' plenary power over lower courts and the “exceptions clause” in Article III, Section 2 of the Constitution seem to give Congress the power to make exceptions to the jurisdictional reach of federal courts. An 1868 case provides some precedent for court stripping, but many jurists argue that the exceptions clause can be used only in relation to substantively neutral rules of procedure. College of William & Mary law professor Mike Gerhardt, who testified before Congress about the Constitution Restoration Act last year, firmly believes that bills like it are unconstitutional. “Congress has the authority to regulate the jurisdiction of the federal courts, but it's not an unlimited power,” he says. “In a number of these measures there's an effort to undermine areas of constitutional law itself.”

There's another, more practical reason why such bills have virtually never become law since 1868: the obvious danger that the passage of one might set off a frenzy of politically motivated congressional restrictions on the courts. For many in today's Congress, this possibility is no longer something to fear. Indiana Congressman John Hostettler is a Christian-right ally and Judiciary Committee member who sponsored and secured House passage of the court-stripping Marriage Protection Act in 2004. When asked if he ever worries that such bills might lead to a slippery slope for excessive or politically motivated judicial restrictions, Hostettler told the Prospect: “I don't worry, to the extent that this was a provision that the Framers of the Constitution placed in that document for Congress to utilize … . To the extent that the people themselves want this power exercised, it's really ultimately up to them, through the elective process.”

As Moore and Titus pushed the Constitution Restoration Act in Congress, meanwhile, Scarborough worked to sustain momentum behind the judiciary issue in the aftermath of the Alabama fight. He convened a meeting in Dallas in February of 2004 with Keyes, Moore, and 60 ministry heads. “We formed a steering committee that now, on a monthly basis, gave reports concerning the progress of activist judges and kept tabs on things,” Scarborough says. A follow-up meeting with many of the same ministers and movement activists took place a year later in Orlando, Florida, where an executive committee was organized for the jcccr, their new 501c(4) organization. Scarborough would serve as its president. The group set about organizing a conference, “Confronting the Judicial War on Faith,” held on April 7 and 8 in Washington.

In between the planning and the event, the Schiavo Götterdämmerung unfolded. In terms of raising the profiles of both the issue of the “arrogant judiciary” and the conference itself, the Schiavo story no doubt served as a boon to the organizers. But it could just as easily be said that the raw emotions and rhetoric lingering from that fight (Schiavo died a week before the event) lent the conference a heightened quality of macabre extremism that was probably counterproductive. (Amid repeated calls for mass impeachment of judges, a typical panelist characterized the modern judiciary's guiding tenets as “humanism, secularism, hedonism, and sexual nihilism”; another, as “Marxist, Leninist, satanic principles drawn from foreign law.”)

At any rate, out of the conference came a set of action items, hashed out with the assistance of Titus and Moore. The JCCCR's agenda “to stem the rising tide of judicial tyranny” consists of ending judicial filibusters, passing the Marriage Protection and Constitution Restoration acts, withholding funds from federal courts whose judges “overstep their constitutional authority,” and impeaching federal judges “who insist on substituting their own views for the original meaning of the Constitution.” Nearly 200 years after the impeachment of Chief Justice Samuel Chase first delegitimized politically motivated judicial removals, and decades after the last “Impeach Earl Warren” signs had been taken down from roadside billboards, politicized judicial impeachment threats have returned as a fixture of the public debate.

In the wake of uniformly negative poll numbers regarding Congress' intervention in the Schiavo affair, many Republican lawmakers (particularly in the Senate) bid a hasty retreat from the judge-bashing rhetoric they had drummed up so vociferously during the fight. But the congressional diehards aren't worried about the prospects dimming for action against the courts, and they have the staunch backing of a majority leader marshaling the support of the religious right during his existential bid for survival. Those attending the May tribute dinner to DeLay assured the Prospect that legislative action against judges remained a priority. “We'll be looking at a number of issues soon relating to the judiciary and making sure that the will of the majority is heard,” said Congressman Mike Pence, leader of the conservative caucus in the House and a member of the Judiciary Committee. Asked if he sensed any post-Schiavo backpedaling from craven GOP lawmakers, Perkins, the Family Research Council's slick and powerful president, said, “Not from the people who've been driving this from the beginning. It'll take time to educate the public, but this is clearly an issue that is on the agenda.”

The mercurial House Judiciary Committee chairman, Jim Sensenbrenner of Wisconsin, has indicated what the shape of the campaign on judicial issues is going to look like this year. In a May 9 address at Stanford University, Sensenbrenner described the political moment as prompting “a national discourse of sorts on the nature of what the courts do and their relationship to the national legislature.” The speech offered a few specific proposals, including creating a judicial inspector-general post and breaking up the 9th U.S. Circuit Court of Appeals, which has been long perceived by the right as a liberal hotbed (never more so than in the wake of its 2002 ruling that the “under God” phrase in the Pledge of Allegiance is unconstitutional).

Sensenbrenner's proposals will provide some of the pretext for what is to be the central front in the Republican campaign against the judiciary this year: hearings. The plan is for an extended series of Judiciary Committee hearings during which all of the right-wing grievances against the imperial branch can be aired. Hostettler says that, in the next few months, his committee plans to examine the structural issues related to the judiciary in a systematic way. “The Constitution subcommittee, and probably the full committee, will be taking up this issue in a fairly lengthy process, getting a lot of input as to where we are, how we got here, seeing if there is a possibility for change,” Hostettler says. He anticipates a thorough airing of the issues -- at least five hearings.

The benefits for the right of a lengthy hearing process, assuming it's well-publicized, are obvious: It provides another opportunity to stoke and sustain the outrage of the Christian right while giving lawmakers a chance to try to chip away, slowly but surely, at the broader public's faith in the legitimacy of the modern judiciary. The hope is that sustaining the debate would shift popular sentiments in the right's direction and lay the groundwork for future action. (Recall the high-profile congressional hearings in 1998 cataloging the “Gestapo” tactics of the Internal Revenue Service, which preceded a rollback in funding for IRS audits and enforcement capacity.)

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Meanwhile, if social conservatives want to encourage the broader public to question the contemporary judiciary's outsized presence in American politics, they'll have some unlikely allies.

A few months before DeLay shocked people by seemingly lamenting the existence of judicial review in an April Washington Times interview, Dissent magazine published an article, headlined “Democracy Versus Judicial Review,” by the esteemed liberal Georgetown law professor Mark Tushnet. In it, Tushnet proposed a constitutional amendment that would prevent any court from reviewing the constitutionality of any legislative statutes enacted by Congress. His proposal out-extremes virtually anything one hears from contemporary right-wing judge-bashers. Tushnet has a number of allies among liberal legal scholars, including Columbia University's Jeremy Waldron and Stanford Law School Dean Larry Kramer, who've written extensively and critically about the American tradition of robust judicial review and proposed various versions of “popular constitutionalism” as a substitute.

A larger number of scholars reject this radical repudiation of judicial review but join Tushnet and others in calling for a more restrained and cautious approach by the judiciary when intervening in major political controversies. The principle underlying, for example, the “judicial minimalism” espoused by the University of Chicago's Cass R. Sunstein is the same as that underlying Tushnet and Kramer's popular constitutionalism -- and it happens to be the refrain one hears repeated ad nauseam by the right-wing judge-bashers: The popular will, as expressed through legislative representation, has a more legitimate claim to decisions regarding major political controversies than unelected judges. “Democracy is something that people are entitled to have,” Sunstein says simply. “And if the courts are striking things down even in the interest of protecting rights, they're at least potentially compromising one of the people's rights, which is self-government itself.”

Though that is a line that could easily have been uttered by a panelist at the JCCCR conference, it's important to dispel the notion of a real convergence of prescriptive analysis between liberal critics of judicial review and modern religious-right judge-bashers. Tushnet takes an extreme but principled stance against judicial activism, based on a serious commitment to notions of democratic participation and legitimacy; the religious right, like virtually every other political movement, adopts the appearance of “originalism” and crows about the evils of activism for largely opportunistic reasons. As Tushnet puts it, “Their complaint is of activist judges doing things they don't like. They'd be perfectly happy with their own activist judges.”

Principles aside, what the liberal debate over judicial review reflects more than anything else is a sense of disillusionment with the potential for progressive judicial action once embodied by the Warren Court, and with the legalistic path that liberalism charted in the last few decades of the 20th century. According to Berkeley political scientist Gordon Silverstein, whose forthcoming book, How Law Kills Politics, chronicles the “legalization of politics and policy” and the judicial strategy pursued by liberal activists during those decades, a focus on advancing policy agendas through the courts had the effect of sapping liberal and Democratic movements of much of their grass-roots strength and political appeal. “Liberals became entirely too dependent on the [Supreme] Court,” Silverstein says. “It was a failure of organizational will -- ‘We'll turn to the courts, let them do our work for us.'” The notion is a familiar one on the left -- and in due time, the religious right might sing the same tune.

For several decades now, that movement has provided the national gop's electoral muscle while consistently failing to achieve any of its most important policy objectives. Christian conservatives provide the feet on the ground and the physical hands on the voting levers; for their efforts they are rewarded, at best, with half-hearted symbolic gestures and some orchestrated election-eve Sturm und Drang, while Republicans mainly concern themselves in office with the business of business.

Indeed, alongside the enduring impact of Roe v. Wade and certain Warren Court decisions, this sense of political failure is one of the central causes of the modern religious right's preoccupation with the courts. “The religious right has now rationalized the fact that they don't get much legislatively [by shifting to] a primary focus on the judiciary,” says ex-movement conservative Marshall Wittman of the Progressive Policy Institute, who worked for the Christian Coalition in the early '90s. “They will justify the fact that they get lip service on a lot of issues by saying that eventually the judiciary will be transformed and their concerns will finally be addressed.”

Scarborough all but lays this out explicitly when asked why a focus on the judiciary has become so central to the religious right's efforts at this political moment. “The election of [George W.] Bush finally just defined this completely for us,” he says. “We've played by the rules. We've done everything we were told to do … . We galvanized, we began winning elections and getting our people in office, but it didn't change anything. And so in the last four years, it has finally come on like a lightbulb to us that we're winning elections and losing the war. The fact of the matter is that judges are now ruling the country and they're going against the will of the people. So if that's the way the game is played, then we're going to get involved in the game.”

The problem for Scarborough, however, is that the playing “game” of politics through judicial advocacy is no more likely than lobbying Congress to yield his movement the gains it seeks. Republican politicians fail to deliver to their religious base for a simple reason: The religious right's positions on most key issues are politically untenable. If Christian conservatives believe they can jump ahead of public opinion by pushing their cultural agenda through a transformed judiciary, they can expect to fall into some of the same political predicaments that liberals did in the last 30 years. But they're unlikely even to get that far. As Robert Dahl showed 50 years ago and several analysts have since confirmed, the Supreme Court, though made up of unelected lifetime appointees, in fact rarely strays very far or very long from the national political consensus. Moreover, the Rehnquist Court has been much more active (and conservative) on issues of federalism, regulation, and state power than on the social issues that animate conservative Christians, and most observers expect this same trajectory for a conservative Court in the future.

Of course, the religious right's political culture and mobilization strategy have long been characterized by martyrdom and impending doom -- manning the battlefield for perpetual defeat and harnessing the energy that such defeat stokes in the movement's believers. A political strategy dependent on losing may seem like a contradiction in terms, but it's the defining reality of the perverse marriage between the Christian right and the GOP. The politics of judge bashing is perfectly suited to such an arrangement. Combine this fact with the cautionary lessons the right should draw from liberalism's experience of overreliance on the courts and it seems clear that actual substantive action against the judiciary is not, in fact, in the right's political interest. After the madness of this past season of judge bashing, it is an open question whether the congressional advocates for taking on the judiciary -- including the fanatical party leader from Texas, fighting for his political life -- remain clear-eyed enough to realize this. Liberals just might have reason to hope they don't.

Sam Rosenfeld is a Prospect web writer.