Democracy Under Assault
Theopolitics, Incivility and Violence on the Right

Michele Swenson

Assaults on the Independent Judiciary
KGNU Radio Commentary August 25, 2005

 Even as Democrats were denounced for considering such an extreme measure, Weekly Standard editor William Kristol hailed the Terri Schiavo case as opportunity to trigger a "nuclear" option. He named his effort to "rise up against our robed masters," in order to achieve a Bush-dominated federal judiciary, "Terri’s revolution." Kristol is among those who maintain that conservative efforts to change society in their image demand profound changes to the courts.

Not content with Pat Robertson’s goal of a "bullet-proof" Republican legislative majority, the political right has waged a stepped-up assault on the independent judiciary since the ‘90s. One-time Supreme Court nominee Robert Bork proposed total elimination of constitutional judicial review of laws, in order to prevent "left-wing" judges from creating "social revolution" from the bench. Efforts to strip judicial jurisdiction over contentious issues include the 2004 Republican Platform proposal to eliminate court jurisdiction over gay civil rights legislation, much as Jesse Helms in the ‘80s proposed removing school prayer from judicial oversight.

While Tom DeLay threatened impeachment of "activist judges" in the ‘90s, Paul Weyrich’s Free Congress Foundation called for impeachment of 6 of the 9 Supreme Court Justices. Republican senators claimed the right to select one-half of all judges, and proposed limiting federal judges to 10-year terms. Pat Robertson raised the call to indict judges for the impeachable offense of "high crimes and misdemeanors"— the criteria to be determined by the House majority.

Ultimately, the Federalist Society dismissed the idea of judicial impeachments as impractical, preferring instead to push for appointment of ultraconservative judges. Mentored by Antonin Scalia and Robert Bork since its 1982 founding, members of the Federalist Society ultimately seek to redefine minimum wage, environmental, labor and civil rights laws as "unlawful government takings" under the Fifth Amendment. It is no wonder that the right seeks to disassociate John Roberts from the Federalist Society, whose members have pronounced the Voting Rights Act and spending for the general welfare unlawful "intrusions" into state jurisdiction. Ironically, the most notorious override of states’ rights in recent times is Bush v. Gore, the U.S. Supreme Court’s reversal of the Florida Supreme Court’s decision to count all the votes in the 2000 election, a case in which John Roberts reportedly played a role.

Gay civil rights, privacy rights, and the "wall of separation" have all been read as "patterns of hostility to religion" by fundamentalists. Former Nixon aide Chuck Colson laments that Christians are not "free to force their religious convictions" on all others. A doctrinal father of the religious right, the late Francis Schaeffer asserted a "Christian duty" to disobey man-made laws.

The political right’s push for theocratic plutocracy in America has encompassed a relentless assault on the judiciary— the last protection of minorities against the tyranny of temporary majorities.