"The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress—a super-legislature, as one of the justices has called it—reading into the Constitution words and implications which are not there, and which were never intended to be there."
As proof, perhaps, that God is not without a sense of irony, that quotation has been issuing from the lips of religious conservatives who rail against what they call "judicial tyranny." It's been cited by the improbably named Rev. Rod Parsley and, at a recent conference devoted to "Confronting the Judicial War on Faith," Rick Scarborough of Vision America.
If Providence smiles upon the sentiment, provenance does not: It comes from one of Franklin Delano Roosevelt's fireside chats, in which he sought to justify his 1937 Court packing scheme. Roosevelt, recall, had pushed a series of ambitious federal programs in response to the Great Depression. But a recalcitrant Supreme Court, by margins of 5-4 and 6-3, kept insisting that Roosevelt's creative solutions be bounded by the constitutionally enumerated powers of Congress; that exercise of the power to "regulate Commerce...among the several States" actually involve commerce between states; that Congress not abrogate freedom of contract.
An arrogant judiciary, Roosevelt argued, was usurping legislative powers and thwarting the will of the people. And this was not, he averred, merely a question of differing jurisprudential philosophies or interpretations of contestable constitutional provisions. Rather, the Constitution was "an easy document to understand," and if the Court failed to recognize the General Welfare Clause as a grant of sweeping congressional power, then justices were simply ignoring the Constitution's plain meaning and substituting their "personal economic predilections" for the law of the land.
Though Roosevelt's proposed remedy to this judicial tyranny—adding a cohort of more forward-thinking young justices to counterbalance the geriatric rebels then on the bench—failed to pass, a chastened Court soon began to see things his way. Not only conservatives, but also some Democrats otherwise supportive of the New Deal, bristled at this presidential attempt to exercise what we might call the TNT option, escalating a substantive conflict over interpretation into all-out structural war on the separation of powers.
One might expect conservatives, for many of whom Roosevelt remains a bête noire, to be chary of borrowing pages from his playbook, as with the Constitutional Restoration Act, which seeks to strip courts of the jurisdiction to review government's "acknowledgement of God." Any judge who exceeded her jurisdiction under the law—say, by considering almost any plea for relief under the Establishment Clause—would be subject to impeachment.
To make sense of this strange appropriation of FDR, it's really necessary to watch the proceedings at the "War on Faith" conference held earlier this month and absorb the sheer quantity of bile spewed on the black robes. Michael Schwartz, chief of staff for Sen. Tom Coburn (R-Okla.), told one reporter "I don't want to impeach judges. I want to impale them." Don Feder opined that the modern judiciary had abandoned the principles of the American Revolution for those of "the French Revolution, with its goddess of reason, with its reign of terror, and with its guillotine." Alan Keyes called the courts the primary "focus of evil in our society," comparing them to the Soviet Union. All this even on courts dominated —how sharper than a serpent's tooth—by Republican appointees!
Just a few days prior to the conference, Sen. John Cornyn (R-Tex.) had wondered "whether there may be some connection between the perception...judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."
So intense is the conservative rage against the courts that some seem to want to revisit not just Roe v. Wade but Marbury v. Madison too. Family Research Council head Tony Perkins has claimed that judicial review was "never envisioned by the Founders." Tom DeLay told The Washington Times "The reason we had judicial review is because Congress didn't stop [the Court]."
It's true, of course, that the phrase "judicial review" doesn't appear in the Constitution. But even a cursory knowledge of the history of the founding makes it painfully clear that both opponents and supporters of the nascent Constitution took for granted that it would be part of the structure of the American system. The anti-federalist Brutus argued against the proposed Constitution in part on the grounds that the Supreme Court would be empowered to nullify laws "by adjudging that they are inconsistent with the constitution" and even "authorised in the last resort, to determine what is the extent of the powers of the Congress." Alexander Hamilton's defense, in "Federalist 78," was not to deny that judges would enjoy such a power of review, but to affirm:
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, the Constitution ought to be preferred to the statute... [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
Hamilton saw that the judiciary was the branch of government least capable of tyrannizing. Its power, after all, is largely negative: It can void a law, halt governmental action, not (in most cases) initiate it. Liberty, Hamilton wrote, "can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments... It is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches." Hamilton would probably not have derived much comfort from Rep. Lamar Smith's (R-Tex.) view that when "there are judges that are not so right-thinking, that's where Congress has to step in."
It is a novel concept of tyranny that allows it to comprise barriers to government action, though it does make sense if one conceives of liberty primarily in the guise of what Benjamin Constant called "the liberty of the ancients," the freedom to see one's will enacted through the political process. Since that has not traditionally been the sense in which conservatives intend the term, it's hard to see this recent spate of attacks on judges as more than a populism of convenience, a function of the belief (perhaps mistaken) that the public currently resents attempts to check those who now control the legislative and executive branches.
But religious conservatives familiar with Ecclesiastes should temper their enthusiasm for the dismantling of structural impediments to temporary majorities. Republicans may play the role of Caesar for now, but in politics especially, time and chance happeneth to them all.