Also by Phyllis Schlafly
FROM SPENCE PUBLISHING
Feminist Fantasies foreword by Ann Coulter
ON POLITICS
A Choice Not an Echo
ON FAMILY AND FEMINISM
The Power of the Positive Woman
The Power of the Christian Woman
Who Will Rock the Cradle?
Equal Pay for UNequal Work
Stronger Families or Bigger Government?
Meddlesome Mandate
Pornography's Victims
Feminist Fantasies
ON NATIONAL SECURITY
The Gravediggers Strike from Space
The Betrayers Kissinger on the Couch Ambush at Vladivostok
ON HISTORY
Mindszenty the Man Safe Not Sorry
ON EDUCATION
First Reader First Reader Workbook
Turbo Reader Child Abuse in the Classroom

THE SUPREMACISTS
The Tyranny of Judges and How to Stop It
PHYLLIS SCHLAFLY
SPENCE PUBLISHING COMPANY • DALLAS 2OO4
Copyright © 2004 by Phyllis Schlafly
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopy, recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in a magazine, newspaper, or broadcast.
Published in the United States by Spence Publishing Company
in Cole Street Dallas, Texas 75207
ISBN: 1-890626-55-4 Library of Congress Control Number: 2004107716
Printed in the United States of America
Contents
Foreword                                                                  	vii
1     Judges Rewrite the Constitution                       	  3
2     judges Censor Acknowledgment of God            	17
3     Judges Redefine Marriage                                 	35
4     Judges Undermine U.S. Sovereignty                	47
5     Judges Promote Pornography                            	57
6     Judges Foster Feminism                                    	65
7     Judges Handicap Law Enforcement                 	76
8     Judges Interfere with Elections                         	82
9     Judges Impose Taxes                                          	92
10     How Judicial Supremacy Began                        	97
11     How Judicial Supremacy Grew                                	103
12     How to Stop Judicial Supremacists                         	113
Table of Cases                                                                 	151
APPENDIX   Excerpt from the Report of the American Bar Association Committee on Communist Tactics, Strategy, and Objectives 						155
Notes                                                                        	159
Index                                                                       	178
"We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order."
PRESIDENT GEORGE W. BUSH March 8, 2004, Dallas
Foreword
WHAT IS THE FUTURE of self-government in America? Will we continue to be the world's greatest self-governing people, a land of liberty and of the prosperity that flows from freedom?
Or will we, like so many others, allow ourselves to be ruled by a small band of elitists who pretend to be wiser than the rest of us and force their policies upon us?
Our American institutions and culture are being undermined today by judicial supremacists. They are carrying out a revolution in our system of government, and most Americans don't realize it, because it has happened stealthily and sporadically over the last fifty years. Activist judges have been legislating a liberal agenda that opposes religious values, conventional morality, the Constitution, and even the right of American citizens to govern ourselves.
THE SUPREMACISTS
A supremacist is one who believes in or advocates the supremacy of a particular group. The threat to America comes precisely from those who believe in and advocate the supremacy of one particular group - judges - over the lawful wishes of the people.
Textbooks still say that we have three balanced branches of government - but textbooks are badly behind the times because one branch has assumed authority over the other two. Today, we are suffering from the oppressive rule of judicial supremacists who have replaced the rule of law with the rule of judges.
We respect the proper role of judges. We need judges, and we need a properly functioning judicial branch. We need judges for the same reason that baseball needs umpires. Someone has to call the balls and strikes and resolve close plays. But umpires are never allowed to change the rules of the game. We would not tolerate an umpire who called a batter out after two strikes.
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.
This book describes what judges have done to our nation and explains how the Constitution contains all the tools needed to rescue America from the tyranny of judges.
Judges Rewrite the Constitution
THE UNITED STATES CONSTITUTION did not create judicial supremacy or consign us to be ruled by a judicial oligarchy. On the contrary, the Constitution separated the vast powers of the federal government into three branches - legislative, executive, and judicial - with an ingenious system of checks and balances so that each branch can serve as a continuing check on the others. We call this the separation of powers, and our state governments are also modeled on the same design. James Madison wrote in Federalist57 that this system is the best way to achieve the twin goals of liberty and justice. By "so contriving the interior structure of the government," Madison wrote, "its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."
But Congress, the legal establishment, and the American people have all failed in their duty to keep the judiciary in its proper place.
The unique and brilliant design of our Constitution  - the system of checks and balances, with each branch checking the power of the other two branches - has been replaced by the Imperial Judiciary. Judicial supremacists have grabbed unconstitutional powers for the courts, and Congress has failed to restrain their power grab.
Our Constitution's Framers designed the judicial branch to be the least powerful of the three branches. Alexander Hamilton wrote in Federalist 78 that the judiciary "will always be the least dangerous" branch of government because it has the least capacity to "annoy or injure" our constitutional rights. His prediction was correct for a century and a half, but today the judiciary annoys and injures our constitutional rights to a shocking extent.
The U.S. Constitution vests "all" legislative powers in the Congress. That means no legislative powers are granted to the courts. Yet, over the past fifty years, judges have become increasingly activist - legislating from the bench, and writing their own policies and attitudes into the law. In the latter half of the twentieth century, some of our most far-reaching social, economic and political decisions have been made by judges rather than by our elected representatives.
Judicial supremacists have:
- censored the Pledge of Allegiance in public schools
- removed the Ten Commandments from public
- buildings and parks
- changed the definition of marriage
- banned the acknowledgment of God in public schools
- imposed taxes
- rewritten laws of criminal procedures
- dismantled laws that protect internal security
- imposed the social experimentation called forced school busing
- upheld racial preferences and quotas in hiring and college admissions
- outlawed term limits for Members of Congress
- rewritten laws on the conduct of elections
Judicial supremacists have invented so-called rights such as:
- the right to abortion
- the right to same-sex marriage licenses
- the right to show and publish pornography, even with taxpayers' money
- the right of illegal aliens to receive taxpayer-paid benefits
Judicial supremacists have arbitrarily overturned laws adopted by majorities in statewide referenda in:
- California
- Colorado
- Arizona
- Arkansas
- Washington State
Judicial supremacists have set themselves up as a super-executive and grabbed authority to micromanage:
- schools
- prisons
- hiring standards
- legislative reapportionment
THE PROPER ROLES
Social, economic, and political policies should be made by our elected representatives, not by judges. The American people should not allow judges to usurp the constitutional role of legislators. Judges have assumed authorities and responsibilities that the Constitution never gave them, and they are doing great harm - to our society, our culture, our institutions, our schoolchildren, and our right of self-government. We must not permit a judicial oligarchy to rule unchallenged.
We need trial judges to resolve disputes based on applicable law. We want decisions reviewed by appellate courts to ascertain that the law was properly applied. But we do not want judges making new law, setting policies, usurping the authority of other branches of government, or imposing their own social and political views on our people. We do not want judges rewriting the Constitution under the pretense that they are interpreting it. Article V of the Constitution provides a procedure for amending it, and the judiciary has no part in that process.
It is not fashionable to question the authority of the courts. Not recognizing something as wrong for several generations gives it a superficial appearance of being right and allows a noisy clamor to rise in its defense. Those who have profited by the expansion of judicial power have erected formidable barriers against change - and even against criticism.
Our country's future depends on a courageous inquiry into the constitutional errors that have allowed a judicial oligarchy to rule over us. This book will help the American people replace longstanding assumptions and fallacies with the truth. This book offers simple facts, plain reasons, and common sense.
We repeatedly hear the maxim, "We are a nation of laws, not of men." Our Constitution specifically defines itse/f^not the opinions of judges - as "the supreme law of the land." But political judges have turned us into a government of men, not of laws. Judicial grabs for power have been escalating for a half century and there is no end in sight.
One of the "usurpations" that caused Americans to declare our independence in 1776 was royal rulers' "declaring themselves invested with Power to legislate for us in all cases whatsoever." The signers of the Declaration of Independence knew that the essence of freedom is the right to be a self-governing people, to have laws made by representatives whom the voters elect, because government can justly exercise only such powers as are based on "the consent of the governed."
If we are to remain a free and independent nation, we must reject judicial "usurpations," that is, the pretense of judicial supremacists that they are "invested with Power to legislate for us in all cases."
A LIVING AND EVOLVING CONSTITUTION?
The judicial supremacists refuse to be bound by the words of the United States Constitution or the intent of its Framers. Instead, they espouse the theory that the Constitution is a "living" document which can change according to judicially directed "evolution." "Living" and "evolution" (or "evolving") are code words used by judicial supremacists to express their conceit that they can substitute meanings never intended by those who wrote the Constitution or our statutes. Activist judges simply ignore the Constitution's plain language and its authors' intent.
The late Supreme Court Justice William J. Brennan was a leading advocate of these supremacist ideas. In a speech he delivered on November 21,1982, he argued for "the evolution of constitutional doctrine" and for law itself "to rethink its role." Brennan said that in previous eras "the function of law was to formalize and preserve (accumulated) wisdom," but "over the past 40 years Law has come alive as a living process responsive to changing human needs." He bragged that "evolution of constitutional law has been, in fact, a moving consensus," and that "our constitutional guarantees and the Bill of Rights are tissue paper bastions if they fail to transcend the printed page." Listen to the arrogance of Brennan's proclamation of judicial supremacy: "The Supreme Court has been, and is, called upon to solve many of the most fundamental issues confronting our democracy, including many upon which our society, consciously or unconsciously, is most deeply divided, and that arouse the deepest emotions. Their resolution, one way or the other, often rewrites our future history."
That is the mindset of liberal elitist judges, who have convinced themselves that they should rule over Americans of lesser status. The Constitution does not give judges any authority to evolve or transcend its language. Nobody "called upon" nine life-tenured, unelected, unaccountable justices to solve the fundamental issues confronting us and to dictate our "future history." We must call upon our elected representatives to reject these unconstitutional notions.
Another famous liberal Supreme Court activist, the late Justice William O. Douglas, called the Due Process Clause in the U.S. Constitution "the wildcard to be put to such use as the judges choose." In light of Douglas's controversial Las Vegas gambling connections, his metaphor was apt.
The Due Process Clause occurs in both the Fifth and Fourteenth Amendments: no person shall be deprived of "life, liberty, or property, without due process of law." That language, which applies, respectively, to the federal government and the states, was clearly intended to ensure that lawful processes, or procedures, are used by our government. For example, the clause means that accused criminals are entitled to their day in court. The clause was never intended to determine what should or should not be a crime.
The judicial supremacists have used this clause as a wildcard by expanding "due process" to include substantive rights. It was used most famously in Dred Scott v. Sanford(i%$y) to expand the rights of slaveowners and in Roe v. Wade (1973) to declare a right to abortion. There is no authority in the Constitution for this creative use of the term "due process."
Under "substantive due process," the judicial supremacists assert that the federal courts have the discretion
Judges Rewrite the Constitution to create new substantive rights not mentioned in the Constitution and to decide what substantive rights should be protected and how extensive that protection should be. Substantive due process has become the fundamental legal theory upon which the judicial activists depend for decisions that have no basis in the Constitution, and it has been cited in more than one hundred Supreme Court decisions since Roe v. Wade in 1973.
The attitude of activist justices that they can treat the Constitution like "tissue paper," which they can change by playing a "wildcard," is totally contrary to the intent of the Constitution and must not be tolerated. The trouble with some judges is that once they are appointed to the federal judiciary, they seem to think they have been anointed to rule over the rest of us. They pretend they are interpreting the Constitution when in fact they are just writing their own opinions into the law. They selectively choose language to reach preordained conclusions without concern for fidelity to the text, a practice that Harvard law professor Laurence Tribe calls the "free-form" approach.
Americans do not want to live under an Imperial Judiciary. We still adhere to the Constitution, the separation of powers into three branches of government, and the rule of law - and we expect judges to abide by them, too.
The concept of a "living" and "evolving" Constitution has taken root in the political arena. When Al Gore was asked during the 2000 campaign what kind of judges he would appoint, he replied, "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
This heresy has spread throughout the judicial system. The Massachusetts high court, which mandated the granting of same-sex marriage licenses in Goodridge v. Department of Public Health (2003), ruled that "civil marriage is an evolving paradigm." The word evolving was used to suggest that there are no enduring standards and that constitutions can be rewritten by power-grabbing judges. The word paradigm was used to suggest that the traditional worldview about marriage is temporary and has no rational basis.
You know that judges are engaging in activism when they use such code words as "evolving" and "paradigm."
NEW JUDGES CANT SOLVE SUPREMACY PROBLEMS
The federal courts today are precariously balanced between activists who support a radical agenda and constitutionalists who adhere to the Constitution. It is important to elect a President who will appoint only constitutionalist judges - but that alone will not solve the problem because too many judicial supremacists have life tenure, and too many judges become supremacists after they taste judicial power.
President Bill Clinton appointed almost half of all federal judges now serving, and federal judges appointed by Presidents Jimmy Carter and Lyndon Johnson are still deciding cases. Presidents Richard Nixon and George H. W. Bush both appointed some activist judges, and a Nixon-appointed judge on the Ninth Circuit (Alfred Goodwin) wrote the infamous Pledge of Allegiance decision in 2002 (Newdow v. U.S. Congress).
Seven of the nine justices currently serving on the Supreme Court were appointed by Republican presidents. Someone once asked Dwight Eisenhower if he had made any mistakes as President that he later regretted. Ike replied: Yes, two, and they're both sitting on the Supreme Court.
While the American people typically have the opportunity to correct a bad election result after four years, a bad legal precedent can last for decades or even centuries. Justice William O. Douglas was appointed to the U.S. Supreme Court because President Franklin D. Roosevelt wanted to replace what he called the "nine old men" with young, liberal justices. Douglas stayed on the Court for thirty-six years (writing twelve hundred opinions), through the terms of Presidents Harry Truman, Dwight Eisenhower, John F. Kennedy, Lyndon B.Johnson, Richard Nixon, and Gerald Ford. Douglas's prejudice against religion grew so intense that he even questioned the constitutionality of chaplains in the armed services and the words "In God We Trust" on our money.
When he was a member of Congress, Gerald Ford tried (unsuccessfully) to have Douglas impeached because of his money dealings with Las Vegas gamblers. Four times Justice Douglas took a wife "for better or for worse ... until death do us part," and he divorced three of his wives. Yet, the American people were locked in a judicial embrace with Douglas no matter how outrageous his decisions or behavior.
Alexander Hamilton wrote in Federalist 81 that he expected Congress to use its discretion to make appropriate "exceptions and regulations" to keep the judiciary "the least dangerous" of the three branches of government. It's long overdue for Congress to protect us from dangerous judges who are assaulting fundamental American principles.
THE COUP D ETAT
Judge Robert H. Bork describes some of the enormous damage that activist judges have inflicted on America in his book Coercing Virtue: The Worldwide Rule of Judges. He finds that the courts are dominated by faux intellectuals of the Left who, unable to persuade the people or the legislatures, "avoid the verdict of the ballot box" by engaging in "politics masquerading as law." We are "increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will."
All over the nation, special interest advocacy groups are forum-shopping to find judges willing to bypass the Constitution and write their own social and sexual preferences into the law. Plaintiffs are seeking out judges willing to cooperate in deconstructing our culture by abolishing the Pledge of Allegiance and the Ten Commandments to please the atheists, and by abolishing marriage standards and anti-pornography statutes to induce the nation to condone unrestricted sex.
Judges are not trained to consider the trouble their rulings may cause. When judges rewrite laws regarding social policy, they are generally clueless about the potential consequences. Judges lack the necessary information to make political and social policy decisions, they don't have the political processes to ensure that diverse interests are represented, and they don't hold hearings to assess the damage they might cause.
Americans believe that revolutionaries usually come dressed in military garb, but Judge Bork details how America has suffered a coup d'etat by men and women in black robes who have changed the rule of law to the rule of judges. Here is how Justice Antonin Scalia describes what happened: "What secret knowledge, one must wonder, is breathed into lawyers when they become justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? ... Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."
Regardless of how various courts rule on today's hot-button issues - the Pledge of Allegiance, the Ten Commandments, or the definition of marriage - the cancer of judicial supremacy will not go away until the American people rise up and repudiate it.
It's time for the American people to notify their elected representatives, federal and state, that it is their mission to restore the Constitution with its proper balance among the three branches of the federal government. We must save self-government from the rule of judges. The whole future of America depends on it.
Judges Censor Acknowledgment of God
FOR DECADES, the Pledge of Allegiance has been recited daily by millions of schoolchildren. Depictions of the Ten Commandments appear on thousands of public properties, including the U.S. Supreme Court. Against the wishes of Congress, state legislatures, and the American people, unelected judges have been assaulting our right to acknowledge God.
Lawsuits filed by atheists may soon target other acknowledgments of God. Our national motto is "In God We Trust," and it is enshrined on our currency. In our National Anthem, we sing "In God is our trust" and "Praise the Power that hath made and preserved us a Nation."
All three branches of the federal government, as well as our military, have always acknowledged God. Congress
opens each session with a prayer. The President issues Thanksgiving and other proclamations acknowledging God and usually ends his speeches with "God bless America." The U.S. Supreme Court starts each day with "God save the United States and this Honorable Court." All public officials, including the President and all judges, swear an oath to uphold the Constitution "so help me God." Most of us use this same oath when we swear to tell the truth in legal proceedings. These customs have persisted for more than two centuries.
Our nation's founding document, the Declaration of Independence, acknowledges God as our Creator, Supreme Lawgiver, Supreme Judge, and Protector. (Will we soon hear of a lawsuit asking a judge to prohibit the Declaration from being taught in schools?)
God has been specifically acknowledged in all state constitutions. Among the powers reserved to the states under the Tenth Amendment of the U.S. Constitution is surely the power to write their own constitutions.
Nothing in the Constitution confers on the federal courts the final authority to decide how other entities of government may acknowledge God.
ASSAULT ON THE PLEDGE
Despite the tremendous role that the Pledge of Allegiance has played in American life for many decades, on June 26, 2002, the Ninth Circuit U.S. Court of Appeals handed down a 2 to i ruling in Newdow v. U.S. Congress banning the Pledge of Allegiance from the public schools because of its words "under God." The dissenting judge emphasized how ridiculous it is to claim that the Pledge of Allegiance violates the Establishment Clause of the First Amendment: "Such phrases as 'In God We Trust' and 'under God' have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future."
When the Ninth Circuit on March 4, 2003, voted to deny the request for a rehearing en bane, one of the dissenting judges asked, "Does atheism become the default religion protected by the Establishment Clause?"
Congress's reaction to the Newdow decision was dramatic. On the same day as the original anti-Pledge ruling, a resolution of appropriate indignation was adopted by the U.S. House of Representatives by a vote of 416 to 3 and by a Senate vote of 99 to i. When the full Ninth Circuit refused to reconsider this outrageous decision, the House reaffirmed its support for the Pledge by a vote of 400 to 7, and the Senate did likewise by 94 to o. All those votes would be unconstitutional under the Ninth Circuit's reasoning.
Two cheers for Congress. But words are cheap, and Congress has done nothing substantial to fulfill its constitutional duty to correct this judicial outrage.
The anti-God pressure groups and activist judges were emboldened to continue their war against the Pledge. Cases demanding that the Pledge of Allegiance be banned popped up all over the country. In July 2003, a federal judge barred Pennsylvania teachers from obeying a state law that required them to lead their classes in reciting the Pledge or singing the National Anthem. In August 2003, another federal judge voided a Colorado law requiring teachers to lead the Pledge.
Public opinion has always been strongly in favor of having schoolteachers lead the Pledge. Children are not compelled to join in the recitation if it is contrary to their religion, but one atheist parent should not be permitted to silence the entire class. Massachusetts Governor Michael Dukakis's veto of a state law requiring teachers to lead the Pledge became a major issue in the 1988 Presidential campaign and helped to elect George H.W. Bush.
ONE NATION UNDER GOD
The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ." The American Civil Liberties Union (ACLU), atheist lawyers, and activist judges have been trying to make us believe that the acknowledgment of God by public officials, or by anyone on public property, is a violation of those words and therefore must cease. They are acting contrary to what the First Amendment says as well as to our entire political and legal tradition.
God has always been part of the American ideology and experience. In the Declaration of Independence, Thomas Jefferson described our rights as God-given. This means that our rights are natural and inborn, not a grant from a king or the government.
The term "nation under God" as used in the Pledge of Allegiance was popularized by President Abraham Lincoln in the Gettysburg Address in 1863: "... a new nation, conceived in liberty and dedicated to the proposition that all men are created equal... that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth."
It is ludicrous to suggest that Thomas Jefferson or Abraham Lincoln was trying to establish any religion or to force any particular religion on anyone.
In the 19505, during the Cold War, the phrase "nation under God" gained increased popularity as a way of distinguishing America from "godless communism," which was aggressively atheistic and intolerant of religion. Our leaders preferred to describe America in positive, not negative, terms. They didn't want to say "we have individual rights because we're not ruled by kings or commies." Jefferson and Lincoln were known for their eloquence, and saying we are a "nation under God" is surely a better way of endorsing our traditional American ideals.
Atheist pressure groups and activist judges are now claiming that public acknowledgments of God are somehow unconstitutional. It's hard, though, to find Americans who are sincerely offended by the acknowledgment of God.
NEWDOW'S DAY IN COURT
When Dr. Michael Newdow personally appeared in oral argument to ask the Supreme Court to ban teachers from reciting "under God" in the Pledge of Allegiance, the atheists thought he had a compelling legal case. Over the last several decades, the Supreme Court again and again has censored and excluded prayer and morality from public life and schools.
A simple acknowledgment of God in public schools? A moment of silence in school? Posting the Ten Commandments in classrooms? A student-arranged invocation at graduation? A student-led prayer before a football game? The Supreme Court has said no, no, no, no, and no. In no other area of the law have the liberals enjoyed such a run-up of victories over such a long period of time.
Alabama chief justice Roy Moore was even removed from office for displaying the Ten Commandments in a public building.
The religion-haters' mischievous use of the federal courts has persisted because the American public has not been paying attention and because the legal community has propagated the myth that the Constitution is whatever the Supreme Court says it is.
Newdow looked at the long series of pro-atheist Supreme Court rulings and concluded that these precedents require removing "under God" from the Pledge. The atheists assumed the Court was ripe for the ultimate censorship to prevent our society from acknowledging the very nature of our existence. Their victory would relegate the Declaration of Independence, the Gettysburg Address, and countless presidential proclamations to the status of historical curiosities.
At the oral argument before the Supreme Court, Justice John Paul Stevens showed his hostility to religion by supporting Newdow. Justice David Souter expressed the secularists' argument that "under God" doesn't really mean under God, calling the Pledge's mention of God "so tepid, so diluted then so far, let's say, from a compulsory prayer that in fact it - it should be, in effect, beneath the constitutional radar." His metaphor was revealing; under the radar is exactly where the secularists want to conceal God, so that no reference to God is ever noticeable in public or in school.
Newdow probably thought he was scoring points in his oral argument when he said that adding the words "under God" to the Pledge in the 19505 was contrary to the spirit of its original purpose and divided the country between those who are religious and those who are not. Under questioning, he had to admit that "under God" was voted into the Pledge by an act of Congress that was "apparently unanimous." Chief Justice William Rehnquist commented, "Well, that doesn't sound divisive." Newdow retorted, "That's only because no atheist can get elected to public office." At that point, spectators broke into spontaneous applause, confirming that most Americans do not want atheists running our country.
Only public outrage keeps the Supreme Court from banning the Pledge. The day after the oral argument, an Associated Press poll reported that nine out of ten Americans want "under God" to remain in the Pledge. The poll did not ask whether Americans are willing to let judges have the final say about the Pledge.
The issues of judicial supremacy and even of the acknowledgment of God will not go away. The notorious Lemon test, first announced in Lemon v. Kurtzman (1971), encourages the filing of lawsuits so that activist judges can censor any mention of God or religion on the ground that it has a religious purpose, has a religious effect, or increases an entanglement of government with religion. This permits judicial supremacists to manipulate the test any way that suits them.
THE TEN COMMANDMENTS ON TRIAL
The Supreme Court banned the Ten Commandments from public school classrooms in 1980. Private funds had been raised to place framed depictions of the Ten Commandments in Kentucky classrooms, but in Stone v. Graham the Supreme Court ordered them removed.
That action by the judicial supremacists encouraged a national campaign to remove the Ten Commandments from public buildings and parks all over the country. Most of these lawsuits were instigated by the American Civil Liberties Union or Americans United for Separation of Church and State.
Cases to force removal of the Ten Commandments from all public buildings, squares and parks popped up in at least thirteen states since the 19905. In Utah the ACLU even announced a scavenger hunt with a prize for anyone who could find another Ten Commandments monument that the ACLU could persuade an activist judge to remove. These monuments are worth a lot of money to the ACLU because federal law allows generous legal fees to be recovered for every Ten Commandments lawsuit the ACLU wins.
The most famous Ten Commandments case unfolded in Montgomery, Alabama, where the ACLU sued to force removal of a Ten Commandments monument that had been installed in the colonnaded rotunda of the Alabama State Judicial Building on August i, 2001, by Alabama chief justice Roy Moore. Shaped like a cube, this four-foot-tall monument displayed the Ten Commandments on the top. Each of the four sides of the cube featured famous American words: "Laws of nature and of nature's God" from the Declaration of Independence (1776), "In God We Trust" from our national motto (1956), "One nation under God, indivisible, with liberty and justice for all" from our Pledge of Allegiance (1954), and "So help me God" from the oath of office in the Judiciary Act (1789). The remaining space on the sides of the cube was filled with quotations from famous Americans such as George Washington, Thomas Jefferson and our first Chief Justice John Jay, from British jurist William Blackstone, and from our National Anthem.
The ACLU filed suit to have the monument removed, and found a Carter-appointed federal judge willing to intervene in a state court matter. Myron H. Thompson was confirmed as a federal judge by the Democrat-controlled Senate in 1980 just a few months before the Reagan landslide.
Judge Thompson held a week-long trial, then ruled the Ten Commandments monument unconstitutional and ordered it removed from the State Judicial Building. It took him seventy-six pages to present his rationale in Glassroth v. Moore (2003). Thompson's principal holding was that "the Chief Justice's actions and intentions" violate the Establishment Clause of the First Amendment. Unable to demonstrate that the monument itself violates the First Amendment, Thompson rested his decision on Chief Justice Moore's speeches, writings, campaign literature, and associations.
Thompson, who personally went to view the monument, pronounced "the solemn ambience of the rotunda" and "sacred aura" about the monument as additional reasons why it is unconstitutional. He pretended to see the "sloping top" of the Ten Commandments tablets as unconstitutionally making the viewer think that they are an open Bible in disguise.
The "aura" about the monument was augmented, he said, by its location "in front of a large picture window with a waterfall in the background," so that you really can't miss seeing the monument. Thompson concluded that "a reasonable observer" would "feel as though the State of Alabama is advancing or endorsing, favoring or preferring, Christianity." It surely is a non sequitur to say that a picture window and waterfall somehow transform the Ten Commandments, which belong to Jewish law, into an endorsement of Christianity.
Judge Thompson ordered the Ten Commandments removed because three attorney plaintiffs "consider the monument offensive. It makes them feel like outsiders." But no atheist has any plausible claim to be offended by a reference to something he thinks does not exist. Atheists feign offense simply as a way to censor expressions of faith by others. In any case, nobody has a constitutional right not to be offended.
The strangest lines in this opinion were Judge Thompson's repeated references to Chief Justice Moore's belief in "the Judeo-Christian God."Thompson accused Moore of "an obvious effort to proselytize" on behalf of his Judeo-Christian religion and even of being "uncomfortably too close" to supporting the adoption of a "theocracy." Thompson said it would be "unwise and even dangerous" to define the word "religion" in the First Amendment, but he then used the word "religion" or "religious" 149 times in his opinion.
This case had nothing to do with establishing a religion or a church, which the Establishment Clause forbids. The case simply posed the question whether the First Amendment prohibits us from acknowledging God on public property or in a public forum, and the answer should be no.
The issue of displaying the Ten Commandments in public places will be a continuing controversy. Dozens of Ten Commandments cases are being fought in courts all over the country, and judges are coming to different conclusions. In April 2004, the Eighth Circuit U.S. Court of Appeals tossed out its own decision that a Ten Commandments monument must be removed from a city park in Plattsmouth, Nebraska, saying that its entire court will review the issue (ACLU Nebraska Foundation v. City of Plattsmouth}.
The Fifth Circuit U.S. Court of Appeals unanimously rejected an attempt to remove the Ten Commandments from the Texas State Capitol. Contrary to Judge Thompson in Alabama, the Fifth Circuit judges declared the Ten Commandments "a sacred text to many, for it is ... a powerful teacher of ethics, of wise counsel urging a regimen of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world.... There is no constitutional right to be free of government endorsement of its own laws." When the plaintiff sought reconsideration en bane by the entire Circuit, not a single judge voted for rehearing (Van Orden v. Perry, 2003).
PRAYER IN SCHOOLS
The judicial supremacists' war on the acknowledgment of God began in 1962 when the Supreme Court banned prayer in public schools in Engel v. Vitale. The prayer at issue in that case was in no way an establishment of religion or even a sectarian prayer. It simply read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our Country."
No school was ordered to use this prayer; it was merely recommended as a prayer that schools could use. No child was compelled to recite the prayer; children who did not wish to say the prayer could remain silent or leave the room. Teachers were forbidden to make any comment about a child who left the room.
Justice Potter Stewart's dissent went to the core of the problem: "The Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation."
Engelv. Vitale is a major example of the new judicial supremacy embarked upon by what became known as the Warren Court, headed by Chief Justice Earl Warren from 1953 to 1969. Engelwas widely criticized at the time. Legal scholars recognized that the Court was treading on new territory outside the proper scope of judicial authority.
In a major speech, Erwin Griswold, dean of the Harvard Law School, said the Court had no business voiding the prayer. "Congress had made no law," he said in reference to the wording of the First Amendment, and "those who wrote the 'establishment of religion' clause might be rather perplexed by the use which has been made of it in 1962."
Griswold said "it was unfortunate that the question involved in the Enge/case was ever thought of as a matter for judicial decision." Furthermore, "it was unfortunate that the Court decided the case, one way or the other" because "there are some matters which are essentially local in nature ... to be worked out by the people themselves in their own communities."
Pointing out that there was nothing compulsory about the prayer, Griswold added, "In a country which has a great tradition of tolerance, is it not important that minorities, who have benefitted so greatly from that tolerance, should be tolerant, too?" But the minority atheists are supremely wtolerant, and they found judicial supremacists who were all too eager to overturn two centuries of American schoolchildren's acknowledgment of God.
It's easy to track increased public dissatisfaction with the public schools from that date forward. In case after case since Engelv. Vitale, the Supreme Court has carried on a relentless campaign against any mention of God in public schools. The Supreme Court prohibited Kentucky from posting the Ten Commandments in schoolrooms (Stone v. Graham, 1980), and prohibited Alabama public schools from having a daily moment of silence "for prayer and meditation" (Wallace v.Jaffree, 1985).
When the Court banned a prayer at graduation ceremonies in Lee v. Weisman (1992), Justice Scalia said in his dissent that this decision "lays waste a tradition that is as old as public school graduation ceremonies themselves." By the year 2000, the Court had even banned prayers before football games (Santa Fe Independent School District v. Doe).
In 2003, the federal courts started to extend prayer bans to adults. The Fourth Circuit U.S. Court of Appeals declared that it is unconstitutional for cadets attending Virginia Military Institute, a strict state military college, to be required to remain silent while a student chaplain recites this invocation before supper: "Now O God, we receive this food and share this meal together with thanksgiving. Amen." Both the Fourth Circuit and the Supreme Court seemed to acknowledge that the plaintiffs had no standing to sue, but nevertheless allowed a ruling to stand that makes school officials personally financially liable if they reinstate the supper prayer (Bunting v. Mellen).
Another nationally prominent military college, the Citadel, then announced that it, too, would ban prayers rather than risk the expense of defending against a lawsuit. Prayers at the Naval Academy and West Point are the ACLU'S next targets.
Chief Justice Rehnquist stated in Santa Fe Independent School District v. Doe that the Court "bristles with hostility to all things religious in public life." Judge Bork says that activist judges are so thoroughly secularized that "they not only reject personal belief but maintain an active hostility to religion and religious institutions." The Supreme Court "has almost succeeded in establishing a new religion: secular humanism." Under recent First Amendment decisions, nude dancing before school football games would be a more acceptable form of expression than prayer.
OUR RELIGIOUS HERITAGE
The banning of the acknowledgment of God from public life and from public schools is not required by the Constitution. It is a malicious campaign invented and pursued by the judicial supremacists of the last 50 years. Previously, the Court's attitude toward religion was eloquently stated in the 1892 Supreme Court decision of Church of the Holy Trinity v. United States: "No purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation."
The Court listed the religious origins of our society such as the first colonial grant to Sir Walter Raleigh in 1584, the first charter of Virginia in 1606, the Fundamental Orders of Connecticut in 1638-39, the charter of privileges granted by William Penn to Pennsylvania in 1701, the Declaration of Independence, and the constitutions of all the individual states. Concluding, the Supreme Court ruled: "There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people."
As late as 1952, none other than William O. Douglas wrote that "We are a religious people whose institutions presuppose a Supreme Being" (Zorach v. Clauson). But since 1962, the judicial supremacists have been fiercely determined to expurgate every mention of religion from the schoolhouse.
What damage will the Supreme Court do with its next dozen cases on religion? Will the American people allow the judicial supremacists to continue denying our heritage, keeping our children ignorant of our history, changing our culture, and censoring our precious words? Or, are we going to put a stop to the usurpations of the activist judges? Judges Redefine Marriage
THE DEFINITION OF MARRIAGE as the union of a man and woman as husband and wife has prevailed throughout our legal history. Gay activists have been eager for years to get the government to issue marriage licenses to same-sex couples, but have not been able to persuade any legislature, or the voters in any referendum, to make such a change.
So the gay lobby has sought out activist judges who would assert judicial supremacy and override the wishes of the American people.
The gays made their first attempt in the state they thought would be the most receptive. In 1993, the Hawaii state supreme court ruled that the denial of marriage licenses to same sex couples was discriminatory and unconstitutional under Hawaii's state Equal Rights Amendment, which mandates "equality ... on account of sex." The people of Hawaii then rebuked the court by passing a constitutional amendment in 1998 to overturn the Baehr v. Lewin decision. A similar decision was rendered by a lower court in Alaska in 1998, and the court decision was overturned by a state constitutional amendment that same year.
The next move was in Vermont in 1999, where the state supreme court ordered the state legislature to grant all the benefits and privileges of marriage to same-sex couples. The Vermont state legislature should not have allowed the court to tell it what statute to pass, but it did, and in 2000 Vermont governor Howard Dean signed the nation's first "civil union" law.
On November 18,2003, Massachusetts judges shocked the nation. It's hard to find a more outrageous example of activist judges asserting judicial supremacy than the 4 to 3 decision in Goodridge v. Department of Public Health by the Massachusetts supreme court mandating same-sex marriage licenses. The Massachusetts state constitution was written by John Adams and adopted in 1780, and any notion that it was intended to include same-sex marriage is absurd. With elitist arrogance, the slim four-person majority bragged: "Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries."
Indeed, it does. The Massachusetts court even issued a special advisory opinion telling the legislature what sort of marriage law to pass (Opinions of the Justices to the Senate, February 3, 2004).
After acknowledging that for three centuries Massachusetts defined civil marriage as stated in Black's Law Dictionary - "the legal union of a man and woman as husband and wife" - the Massachusetts judicial supremacists declared that there is no "rational basis" for that definition, and ordered this new definition of marriage: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
Contrary to the Massachusetts decision, there is indeed a "rational basis" for the unanimity of the state and federal legislatures throughout American history that marriage should be publicly recognized as the union of a husband and a wife. The American people and our elected representatives have concluded that marriage is a moral good to be protected and encouraged. All social science statistics confirm that traditional marriage is good for women, good for men, good for children, and good for society.
Massachusetts judges had no authority to change the definition of marriage. They simply convinced themselves that they alone could change social policy and make new law. They did no analysis of the consequences of the social policy they mandated.
The dissenting judges in the Massachusetts same-sex marriage case understood that judicial supremacy was the underlying offense in this shocking decision: "What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been im-permissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts.... The power to regulate marriage lies with the Legislature, not with the judiciary."
A concurring opinion in Goodridge v. Department of Public Health cited the Massachusetts state Equal Rights Amendment as one authority for the decision to legalize same-sex marriages. The state ERA was added as Article cvi of the Massachusetts Constitution in 1976. It provides that "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."
Judge Cordy's dissent (joined by both other dissenting judges) reminded the court that just before the 1976 election when the voters adopted the state ERA, the official Massachusetts commission charged with the duty of advising the voters about ERA'S effect issued this statement: "An equal rights amendment will have no effect upon the allowance or denial of homosexual marriages. The equal rights amendment is not concerned with the relationship of two persons of the same sex; it only addresses those laws or public-related actions which treat persons of opposite sexes differently."
The Goodridge decision's partial reliance on the Massachusetts ERA to legalize marriage between people of the
same sex caused UCLA law professor Eugene Volokh to post on his website: "Phyllis Schlafly said it would be like this." Volokh concluded: "So the Massachusetts ERA did contribute to constitutional protection for homosexual marriage - as the opponents of the ERA predicted, and as the supporters of the ERA vehemently denied."
It is fortunate that the proposed federal Equal Rights Amendment was defeated in a ten-year legislative battle, from 1972 to 1982. The word used in the Amendment was "sex" (not women, as many were falsely led to believe), so ERA if ratified would have given the mantle of the U.S. Constitution to same-sex marriages.
The Massachusetts case is part of a national gay rights strategy to make same-sex marriage a new constitutional right. The legal advocacy firm called Freedom to Marry is joined in this effort by the Gay & Lesbian Advocates & Defenders (GLAD), the ACLU, Lambda Legal, NOW Legal Defense and Education Fund, and Human Rights Watch. They seek from judicial supremacists what they cannot win from elected legislatures.
TAKING SIDES IN THE CULTURE WAR
The gay activists' campaign to bypass the legislative process and use judicial supremacists to achieve their goals has been going on for some years. In Romer v. Evans (1996), the Supreme Court overturned the decision of the majority of the people of Colorado who, by statewide referendum, had prohibited localities from granting a special protected status to homosexuals. Without any authority from the Constitution or citation of any applicable legal precedent, the Court ruled that Colorado's Amendment 2 was totally without a rational basis and was "born of animosity" toward homosexuals.
It would be more accurate to say that the Supreme Court's own decision was without a constitutional basis and was born of animosity toward traditional moral standards and people who hold them sacred. Animosity is apparently a quality that judicial supremacists, but not voters, are permitted to have.
In Romer, Justice Anthony Kennedy's majority decision stated: "Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad." When Justice Kennedy said that Amendment 2 confounded judicial review, he meant that it confounded judicial supremacy. Amendment 2 would have limited the ability of the judges to invent new rights for homosexuals. When Kennedy said Amendment 2 was both "too narrow and too broad," he was spouting a contradiction to cover his failure to find any constitutional justification for invalidating Colorado's law.
In Romer, there was no case or controversy in the usual sense; there were some homosexuals and leftists who thought the amendment was bad policy, and the Court agreed. Amendment 2 was very simple and straightforward; the majority of Colorado voters understood its purpose and approved it. When Kennedy denied that Amendment 2 had "any identifiable legitimate purpose," he was simply taking sides in the culture war.
The same-sex-marriage activists know that the legal profession is predisposed to redefine marriage. The dissenting justices in Lawrence v. Texas (the 2003 Supreme Court decision that voided the Texas sodomy law) warned that the Supreme Court is imbued with the "law profession's anti-anti-homosexual culture." As Justice Scalia said in his dissent, Lawrence <v. Texas "is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda," and "the Court has taken sides in the culture war." The Goodridge decision mandating same-sex marriage licenses was the predictable consequence of Lawrence v. Texas.
The out-of-the-mainstream attitudes expressed in the majority opinion in Lawrence v. Texas dealt a devastating blow to long-standing American laws and beliefs about morals and self-government, striking down our right to legislate against immoral actions and doing so without advancing any argument that reasonably relates to the U.S. Constitution. No constitutional argument justified the decision that created the new right of sodomy. The decision evolved out of the social preferences of the justices and their pandering to liberal elites.
Justice Kennedy, who wrote the majority opinion, based it on "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives." It's obvious that using the criterion of "emerging awareness" gives much more latitude to the judicial supremacists who want to impose their avant garde doctrines than does adhering to the Constitution, the text of the laws, and the intent of the people.
In Lawrence v. Texas, Justice Kennedy overturned a U.S. Supreme Court precedent of only seventeen years earlier (Bowers v. Hardwick, 1986). This is the same Justice Kennedy who upheld legalized abortion in Planned Parenthood v. Casey (1992) on the ground that the Court's legitimacy depends upholding the Roe v. Wade ruling of nineteen years earlier. This, of course, is also the same Justice Kennedy who thumbed his nose at the votes of the majority of Coloradans in Romer v. Evans in 1996.
NOT A CIVIL RIGHTS ISSUE
Whining about discrimination, the gay lobby is trying to position the Massachusetts ruling as a logical expansion of the 19605 civil rights movement. It isn't. Gays can already get marriage licenses on exactly the same terms as anyone else. Everyone is equally barred from marrying another person who is under a certain age, or too closely related, or of the same sex, or already married to another. Sound reasons underlie all these requirements, which apply equally to everyone, male and female.
Same-sex marriage licenses are not needed to permit a small number of people to choose alternative lifestyles; they are already doing that. Gays already have the liberty to live their lives as they choose, create partnerships, set up housekeeping, share income and expenses, make contracts and wills, and transfer property.
What gays are now demanding is public approval and government support for a lifestyle that others believe is immoral (like adultery and bigamy). That amounts to the minority forcing the majority to license what it disapproves. It would force the rest of us to accept a public judgment that personal desire outweighs the value of traditional marriage and the need of children for a mother and a father who are married to each other. It would give entitlements to gay couples in the areas of tax policy, education and classroom curricula, adoption, government spending, the military, and Social Security benefits.
Advocates of same-sex marriage pretend that the applicant gays are the only relevant parties. That is plainly false since any license is an authorization by the state for the benefit of the public. Legislatures, not courts, should have the power to decide whether to issue a new type of license for marriage.
If personal desire is to become the only criterion for public recognition of marriage, if equal rights and nondiscrimination require us to be neutral about who is eligible for marriage, how then can we deny marriage to
those who want to marry a child, or a very close relative, or more than one wife? These practices are common in some countries.
If a thirteen-year-old girl can exercise "choice" to "control her own body" and get an abortion, why can't she have the choice to marry? The Goodridge decision ruled that "the right to marry means little if it does not include the right to marry the person of one's choice."
The equal protection and equal rights arguments of the homosexuals are totally phony and are clear admissions that the homosexuals intend to achieve their goals through the courts, toadying to judicial supremacists who will implement policies that would never be approved by elected legislators. America does not treat everyone equally, and the Constitution does not require it. The treatment of individuals under the federal income tax law is dramatically unequal. Many valid laws give benefits or protections to designated groups, such as widows (in the Social Security system), to children (in anti-pornography legislation), and to various people based on need. Many laws impose obligations unequally on designated groups (such as military draft registration and service). State governments grant and deny licenses for dozens of activities, from fishing to gun ownership, using regulations that discriminate among different groups. They are certainly constitutionally justified in licensing traditional marriage but not licensing disfavored marital arrangements.
Traditional marriage is based on the beautiful words "to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, forsaking all others, to love and to cherish, till death do us part." Marriage must continue to be recognized as the essential unit of a stable society wherein husbands and wives provide a home and role models for the rearing of children. The American people and our elected representatives absolutely have a rational basis for concluding that marriage between a man and a woman should be protected and encouraged. Marriage must not be changed to mean merely two consenting persons agreeing to share quarters and apply to the government and employers for economic benefits.
When the famous French commentator Alexis de Toqueville traveled the United States in the mid-nineteenth century, he recognized that respect for marriage is very American: "There is certainly no country in the world where the tie of marriage is more respected than in America, or where conjugal happiness is more highly or worthily appreciated.... While the European endeavors to forget his domestic troubles by agitating society, the American derives from his own home that love of order which he afterwards carries with him into public affairs."
President George W. Bush, in his 2004 State of the Union Address, properly labeled "activist judges" as the enemy of traditional values and urged us to use "the constitutional process" to remedy the problem. Bush called on Americans to defend the sanctity of marriage against activist judges who force "their arbitrary will" by court order "without regard for the will of the people and their elected representatives."
The trumpet has sounded. Will Americans answer the call - and demand that our elected representatives do their duty to protect us from judicial tyranny? Or will they, like Massachusetts Attorney General Tom Reilly and Governor Mitt Romney, protest that they are against same-sex marriage, but knuckle under to the judicial supremacists and repeat the mantra that the court's decision is "the law of the land"? The failure of Massachusetts' elected public officials to act emphatically against the judicial assault on marriage has encouraged judicial activists in other states, notably Oregon and California, to indulge in similar same-sex mischief.
Americans must reject the supremacists' unconstitutional notions that judges can make law and redefine marriage. Our future depends on it.
Judges Undermine U.S. Sovereignty
EVERY JUDGE, UPON TAKING OFFICE, swears an oath to the United States Constitution. What, therefore, should we say about a judge who bypasses the U.S. Constitution and laws and instead applies a foreign court's opinion? Is such a judge not faithless to his oath of office?
Yet such rulings have become more and more frequent. Six current Supreme Court justices have cited foreign sources. Justice Stephen Breyer gleefully told George Stephanopoulos on ABC News how the United States is changing "through commerce and through globalization ... [and] through immigration," and that this change is having an impact on the courts. He speculated on "the challenge" of whether our U.S. Constitution "fits into the governing documents of other nations."
Where did Justice Breyer get the idea that the U.S. Constitution should "fit" into the laws of other nations? If the United States can't make its own laws, we cannot be a sovereign nation.
In a dissent in Knight v. Florida (1999), Justice Breyer suggested that it was "useful" to consider court decisions on allowable delays of execution in India, Jamaica, and Zimbabwe. Zimbabwe, indeed, has had a lot of experience with executions, but it's hardly a country from which we should obtain guidance about due process.
Justice Kennedy couldn't find any language in the U.S. Constitution to justify overturning the Texas sodomy law in Lawrence v. Texas (2003), so he invoked "other authorities" to rationalize his "emerging awareness" that "liberty" now means that the judiciary can grant more license in matters of sex. These non-American authorities included a committee advising the British Parliament, decisions of the European Court of Human Rights, the European Convention on Human Rights, a brief filed by former United Nations High Commissioner for Human Rights Mary Robinson, and "other nations, too."
Kennedy overruled Bowers v. Hardwick (1986), brushing off what he called "the sweeping references by Chief Justice Burger [in that case] to the history of Western Civilization and to Judeo-Christian moral and ethical standards." The judicial supremacists think it is their mission to dictate a new regime of sexual mores to replace
our Judeo-Christian moral and ethical standards, which they believe are obsolete.
Justice Kennedy wrote in Lawrence v. Texas that "The right the petitioners seek [to engage in homosexual sodomy] has been accepted as an integral part of human freedom in many other countries." Failing to mention the countries where sodomy is a serious crime, he emphasized the "values we share with a wider civilization." In fact, most other countries do not share American values, and we certainly don't want to share theirs.
Four other justices joined Kennedy's majority decision without distancing themselves from his globalist reasoning or his inaccurate recitation of the history of sodomy laws in this country. Justice Scalia eloquently dissented: "Constitutional entitlements do not spring into existence ... because foreign nations decriminalize conduct." He called Kennedy's words "dangerous dicta," adding that the Supreme Court "should not impose foreign moods, fads or fashions on Americans."
Looking to foreign countries for guidance about U.S. laws or court decisions not only is an interference with our sovereignty, but will diminish the precious constitutional rights that Americans enjoy. The proposed Constitution for the European Union (EU) is completely different from our great, long-lasting United States Constitution. Our Bill of Rights sets forth a list of individual rights against the government, whereas the EU constitution includes a long list of entitlements to services to be provided by the government such as education, paid maternity leave, health care, housing, and environmental protection. The EU constitution purports to require "equality" between men and women, but sets up a program to give "specific advantages in favor of the underrepresented sex."
Instead of condemning Kennedy's use of foreign courts to change U.S. laws, the president of the American Bar Association opined that "the concept of fundamental law knows no national boundaries." Harvard law professor Laurence Tribe chimed in to "applaud" the "important insights" of the""global legal community."
This is deceptive. In fact, most other countries' "concept of fundamental law" is far removed from ours. Most other countries flatly reject precious American rights, spelled out in our Bill of Rights, such as trial by jury. Other countries' concepts of fundamental law may include such practices as same-sex marriages, polygamy, arranged marriages between cousins, so-called honor killings of women who reject the arrangements, cutting off hands as a punishment for theft, stoning to death as punishment for adultery, and prohibiting the private ownership of guns.
Justices Ruth Bader Ginsburg and Stephen Breyer, concurring in Gruffer v. Bo/linger (2003), cited a United Nations treaty to justify the University of Michigan Law School's racial preferences: "The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994 ... endorses special and concrete measures to ensure the adequate development and protection of certain racial groups ... for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms."
The Senate ratified that treaty under pressure from the Clinton Administration thirty years after President Lyndon B.Johnson signed it. That is an example of how United Nations treaties come back to bite us by interfering with U.S. laws and customs.
Justice Ginsburg argued for adopting precedents from other countries: "Our island or Lone Ranger mentality is beginning to change" as justices become "more open to comparative and international law perspectives." In other words, if she cannot justify her views based on U.S. law, she will use foreign law. Of course, she is very selective about the foreign laws she cites.
Justice Sandra Day O'Connor, who has also succumbed to the lure of foreign laws and court decisions, predicts that "over time [the U.S. Supreme Court] will rely increasingly ... on international and foreign courts in examining domestic issues."
In Atkins v. Virginia (2002), citing an amicus brief from the European Union, Justice John Paul Stevens rewrote the Eighth Amendment to outlaw capital punishment for those with low IQ. scores. The EU warned us, Stevens wrote, that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." Justice Scalia retorted, "The views of other nations cannot be imposed upon Americans." But five justices did impose foreign views on us.
Justices Stevens, Souter, and Ginsburg again turned to a foreign authority in writing a 2004 opinion. Dissenting from a decision in favor of private property rights, they invoked the views of a foreign supreme court justice for the purpose of departing from the plain meaning of U.S. laws (BedRoc Limited v. United States).
Some state court judges are likewise infected with the itch to take guidance from foreign courts. The chief justice of the Massachusetts supreme judicial court (the court that issued the Goodridge decision demanding same-sex marriage licenses), Margaret Marshall, is "an advocate of mining the work of foreign courts," according to a writer for the journal Legal Affairs. That was the topic of Marshall's post-Goodridge lecture at New York University Law School. The reporter, who attended the lecture, received the clear impression that Marshall is strongly influenced by the high court of South Africa, which has promoted gay rights. Although Marshall (who is a South African native) did not cite a foreign court in Goodridge, Harvard law professor Martha Minow, who has known Marshall for fifteen years, commented that Goodridge "is like a South Africa decision."
In March 2004, the European Court of Human Rights in Strasbourg ruled that laws preventing convicted prisoners from voting in elections are a breach of their human rights. The court ruled that it cannot accept "an absolute bar on voting by any serving prisoner . .. ."
Nearly all of America's fifty states deny the franchise to prisoners and also impose some kind of restriction on voting by convicted felons who have been released from prison. Suddenly realizing that, if these felons had voted, Al Gore could have carried Florida in the presidential election of 2000, the ACLU has filed lawsuits in several states hoping that supremacist judges will rewrite state laws to allow convicted felons to vote.
In addition to seeking the new voting bloc of released felons, will the Democrats now seek the votes of prisoners, citing the Strasbourg decision to persuade activist liberal judges to open up this new constituency?
INTERNATIONAL LAW IS POLITICS
In addition to the unacceptable citations of foreign laws, treaties, court opinions, and briefs to decide U.S. cases, we hear judges, lawyers, and politicians talking casually about "international law." That is not law as we understand the term at all; it is just international politics.
The people who seek global governance are using supremacist judges to put Americans in the noose of 
fabricated law (i.e., not passed by any legislature) written (usually ex post facto) by foreign bureaucrats or United Nations functionaries, and administered by foreign bureaucrats pretending to be judges. The goal of these globalists is the worldwide rule of judges.
A tremendous effort was made to lock the United States into the International Criminal Court (ice) through a treaty negotiated during the Clinton Administration. Clinton signed the ice treaty on New Year's Eve 2000, one of his last acts as president. Fortunately, President George W. Bush unsigned the ice treaty in 2002. If the U.S. Senate had ratified the ice, U.S. troops and even government officials would be subject to political prosecution by a court in the Hague, where Americans would not, of course, have U.S. Bill of Rights protections such as trial by a jury of their peers.
The impudence of these foreign courts knows no bounds. The ice claims jurisdiction over Americans even though we are not a party to the ice treaty. Our government should never acquiesce in such judicial arrogance.
Further evidence of judicial power-grabbing includes the tribunals of the North American Free Trade Agreement (NAFTA). On February 6, 2001, a NAFTA tribunal ordered the United States to ignore U.S. environmental law and forthwith admit tens of thousands of Mexican trucks that do not meet U.S. standards. The NAFTA tribunal claimed to derive its authority from the NAFTA "treaty," but NAFTA was not a treaty; it was a congressional law. A U.S. court properly ruled that NAFTA does not override U.S. domestic law, but that decision has been appealed to the Supreme Court (Public Citizen v. U.S. Department of Transportation, 2004).
Another NAFTA tribunal, after hearing appeals from two U.S. state court decisions, upheld a Massachusetts court decision and overturned a Mississippi court decision. These judgments cannot be appealed. The American serving on this tribunal, Abner Mikva (a former activist federal judge and U.S. Representative) commented: "If Congress had known that there was anything like this in NAFTA, they would never have voted for it." The part of NAFTA that created this tribunal, chapter n, received scant attention when NAFTA was passed in 1993.
The NAFTA advocates are planning to expand NAFTA (a three-nation agreement: the U.S., Canada and Mexico) into FTAA (Free Trade Area of the Americas: a thirty-nation agreement). The experience of the European Union shows that economic integration inevitably leads to political integration, a loss of national sovereignty and self-government, and submission to the rule of unelected bureaucrats and judges.
The justices' use of foreign sources has encouraged liberal politicians to appeal to foreign tribunals to change the U.S. Constitution. Eleanor Holmes Norton, the Washington, D.C., delegate to Congress, wants foreign authorities to overturn the clause in Article I, Section 8 that authorizes Congress to govern the District of Columbia. She has appealed to the Helsinki Commission to enforce a ruling of the Organization of American States (OAS), which previously ruled that this paragraph violates the American Declaration of the Rights and Duties of Man (the governing charter of the OAS).
If the American people want the U.S. Constitution, rather than global courts and commissions, to continue to be the supreme law of our land, we must tell our elected representatives that we will not tolerate U.S. law being made by foreign judges. It is Congress's duty to stop judges from basing their decisions on foreign law and foreign court decisions instead of on the U.S. Constitution.
Judges Promote Pornography
JUDICIAL SUPREMACISTS ARE TO BLAME for allowing a torrent of obscenity to engulf the movies, television, the theater, books, and even classroom curricula. Robert Bork observes that "the suffocating vulgarity of popular culture is in large measure the work of the Court. The Court did not create vulgarity, but it defeated attempts of communities to contain and minimize vulgarity."
The Court's virulent judicial activism repeatedly and aggressively defeats the people's attempt to maintain a decent society. The courts stole the legislative function in violation of the separation of powers. The courts have used the First Amendment to carry out a massive attack on public decency.
It wasn't always so. Many Americans can remember when movies contained no obscenity or even profanity.
The high level of sex, violence, and profanity in movies started during the era of the Warren Court.
The core of the First Amendment's speech clause is the protection of political speech and, as late as 1942, a unanimous Supreme Court ruled in Chaplinsky v. New Hampshire that prohibiting obscene, profane, or insulting words was never thought to raise any constitutional problem because those utterances are not political speech. Now, the Court not only limits political speech in campaigns and religious speech in schools, it uses the First Amendment to elevate pornography and other assaults on decency to the level of a First Amendment right.
In the landmark case on obscenity, Roth v. United States (1957), the Supreme Court ruled: "Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance----
We hold that obscenity is not within the constitutionally protected speech or press." Roth meant that obscenity has no redeeming social importance whatsoever and is not protected by the First Amendment. A pudding that contains arsenic has no nutritional value.
One of the highly paid lawyers for the smut publishing industry, Charles Rembar, bragged in his book The End of Obscenity that he gave the activist judges on the Supreme Court the rationale to reverse convictions under the laws passed by legislatures, until they were no longer enforceable against obscenity. As the lawyer in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts (1966), known as the Fanny Hill case, Rembar persuaded the Court to make two subtle changes in Roth's language which looked minor at the time, but resulted in a wiping out of the laws against obscenity.
The Court changed Roth's "social importance" to Fanny Hilh "social value," and transposed the word "utterly" to another part of the sentence. With that bit of semantic chicanery in Fanny Hill, the new rule became "A work cannot be proscribed unless it is found to be utterly without social value." The book Fanny Hill was held not to be obscene because the prostitute reformed on the last pages of the book.
"Social value" quickly became a password to pornography; all a smut peddler had to do was to insert a few social or literary passages, and his obscenity was clothed with the Constitution. The obscene Swedish movie I Am Curious - Yellow was defended on the ground that although it pictured intercourse explicitly and in public, it was protected by the First Amendment because the couple did their act on the balustrade of the royal palace in Stockholm as a protest against social institutions.
After the Fanny Hill decision, the pornographers increased the volume of their output many times over - and they matched it with lavish funds for legal talent to carry dozens of cases to the Supreme Court and overwhelm the justices with their sophisticated arguments.
By October 1966, the obscenity racket was in full swing. The dealers flooded the Supreme Court with twenty-six appeals from lower court convictions. The mere existence of twenty-six cases on one subject at one time shows the great financial resources of the obscenity industry, its determination to change our laws that had been in existence for nearly two hundred years, and its optimism that this could be accomplished by the Warren Court with activist liberal justices Earl Warren, William Brennan (who wrote the Fanny Hill opinion), Abe Fortas (who had represented pornographers before he went on the Court), Hugo Black, and William O. Douglas adopting the pornographers' most extreme arguments.
The obscenity dealers were not disappointed. From 1966 to 1970, the Warren Court handed down a truly revolutionary series of thirty-four decisions that turned the law of obscenity upside down. These decisions gave extraordinary victories to the pornographers, reversing all the judges, juries, appellate courts, and law enforcement officials connected with those cases. Those thirty-four reversals made laws against obscenity almost impossible to enforce, thereby drastically lowering community decency standards throughout America. (See Notes for a list of these cases.)
All those thirty-four decisions were per curiam (by the Court), making them a major legacy of the Warren Court. More significantly, all thirty-four decisions were anonymous; no justice had the nerve to put his name on any of the decisions. Most of these decisions were only a sentence or two, an unusual tactic which enabled the Court to conceal from public debate the substance of what the Court was approving. One has to search out the lower court decisions to see what gross obscenities the Court was wrapping in the First Amendment.
Typical of these thirty-four anonymous, short, pro-pornography Supreme Court opinions is Mazes v. Ohio (1967), which reversed the decisions of the Ohio supreme court, the Ohio court of appeals, the trial judge, and a jury in one sentence: "The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Ohio is reversed. Redrup v. New York, 386 U.S. 767."
That is the entire unsigned Supreme Court opinion. The Court couldn't find any words to defend the obscenity it was clothing in the First Amendment. Mazes v. Ohio entailed the conviction of a merchant for displaying in his open racks The Orgy Club in the midst of other obscene works. The Ohio supreme court had noted that "the obscene material found between the covers, viewed from any standpoint, is utterly without redeeming social value," and the arresting officer testified that "there were several young boys in the store" looking at the rack. The Court's silence about the facts of the case tended to obscure the enormity of the Court's transformation of our laws protecting Americans against obscenity.
Hollywood got the message from the Supreme Court. In 1966, the Motion Picture Association of America dropped its enforcement of its old Production Code, which Hollywood studios had imposed on themselves since 1930. In 1968, the Association's president, Jack Val-enti, proudly declared that movie makers were now free "to tell their stories as they choose to tell them."
This new freedom brought obscene language, near-total nudity, graphic sex scenes, and sadistic violence to neighborhood movie theaters. The abrupt change was reflected in the Academy Awards. In 1965, the Best Picture was The Sound of Music; in 1969, the Best Picture was Midnight Cowboy, an X-rated film about a homeless male hustler.
SUFFOCATING VULGARITY CONTINUES
Those Warren Court decisions completely changed pornography law in America, and some lower federal courts are now even more extreme than the Supreme Court. The evil fruits of the Supreme Court's endorsement of pornography as a First Amendment right are everywhere apparent, and the pro-pornography bias of the federal courts continues to this day.
In a 2 to 1 ruling in Finley v. NationalEndowmentfor the Arts (1996), the Ninth Circuit U.S. Court of Appeals held that it is unconstitutional for a government agency to consider "decency and respect" for American values when it doles out the taxpayers' money. The winners in this case were Karen Finley (the woman who became famous by parading on stage dressed in nothing but a layer of chocolate), three others whose nude performances centered on homosexual themes, and, of course,
the ACLU. The losers were the American taxpayers. Too late to make any difference in the funding, the Supreme Court reversed this decision in 1998.
Another federal judge ruled that Penthouse magazine and other sexually explicit magazines and videos have a First Amendment right to be available in subsidized stores on military bases. By the ruling in General Media Communications v. Perry (1997), the military was enjoined from obeying the Military Honor and Decency Act of 1996, which forbade such materials on military bases. This was too outrageous for the Second Circuit U.S. Court of Appeals, which reversed, declaring the Act a reasonable regulation of speech in a non-public forum.
Continuing its campaign of using the First Amendment to protect pornographers, the Supreme Court in 2000 struck down a federal statute that required cable operators to stop sending unwanted and never-requested pornographic images into the homes of subscribers during daytime hours (U.S. v. Playboy Entertainment Group).
In 2002, the judicial supremacists invalidated half of the Child Pornography Prevention Act of 1996, despite the fact that it had passed Congress with overwhelming majorities and was signed by President Clinton (Ashcroft v. Free Speech Coalition). This decision knocked out Congress's ban on computer-generated child pornographic images even before the law had a chance to be enforced. Justice Kennedy spent part of his opinion reassuring Hollywood that the Court would never put any limits on the gross sex and violence in current movies.
The following year, the Court nearly invalidated the Children's Internet Protection Act of 1999 based merely on the possibility that adult patrons of public library internet terminals might be inconvenienced by having to ask a librarian to turn off the pornography filter installed to protect children. This decision assured adults that they can continue to enjoy pornography at taxpayers' expense at their local public libraries (U.S. v. American Library Association, 2003).
The major Hollywood studios have at long last realized that the public won't patronize X-rated movies in respectable movie theaters. Nevertheless, the X-rated and XXX-rated video business has become a multi-billion-dollar industry, turning out about four thousand movies a year under protection of the First Amendment as defined by the Supreme Court.
The courts are not interpreting the First Amendment; they are rewriting it to guarantee the profits of pornographers. The judicial supremacists have made the First Amendment a traffic signal that flashes green to pornographers but red or yellow to religious and political speech. From Hollywood movies, to primetime and cable television, to dirty books and songs, "the suffocating vulgarity of popular culture" is all around us.
We can't hope for any revival of civility and morality in the entertainment industry until Congress clips the power of the Imperial Judiciary to overturn legislative attempts to maintain decency.
Judges Foster Feminism
PRIOR TO 1973, abortion law was in the hands of the states, as was nearly all criminal law. A few states, notably New York, California, and Colorado, had passed pro-abortion laws, but the nationwide drive to make abortion legal at any time for any reason was stopped in Illinois. Then, on January 22, 1973, the U.S. Supreme Court overturned all state anti-abortion laws. The core holding of Roe v. Wade is widely misunderstood. It is commonly described in terms of viability or trimesters, or as allowing state regulation under some circumstances.
On the contrary, Roe v. Wade held that a woman has an unrestricted right to abortion at any time during the entire nine months of her pregnancy, provided it is deemed medically necessary to preserve her life or health. The term "medically necessary" was defined to mean that a doctor has agreed to perform the abortion - and this decision need not be justified. The term "health" was defined in the companion case decided the same day, Doe v. Bo/ton, to include "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient. "The practical consequence is that any doctor can perform an abortion at any time.
Roe v. Wade was an outrageous creation of the judicial supremacists. This decision grabbed a legislative function away from the state legislatures and imposed a judicial fiat without any textual or intent basis in the U.S.. Constitution. As Justice Byron White said in dissent, Roe v. Wade was "an exercise of raw judicial power." He wrote, "I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right
Justice Rehnquist explained further that the decision "partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment... To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."
Justice William O. Douglas's confidential papers, which were made available by the Library of Congress in 1988, revealed that the justices were shamelessly plotting with each other to achieve the predetermined result of legalized abortion.
Roe v. Wade was an extraordinary exercise of judicial supremacy and was the godmother to a whole series of subsequent decisions on many subjects for which no I basis exists in the Constitution. Roe v. Wade is a prime example of the judicial supremacists playing the wildcard I of substantive due process.
Supreme Court arrogance reached new heights in Planned Parenthood v. Casey (1992), when the Court linked its own legitimacy with abortion in a circular argument. Although Roe v. Wade had no basis in the Constitution, the Court in Casey urged that Roe be cast in stone lest "the Court's legitimacy be undermined." In other words, in order to maintain the Court's legitimacy, we must not criticize an illegitimate decision. Neither Roe nor Casey was based on any plausible reading of the U.S. Constitution.
From 1995 to 2000, laws prohibiting partial-birth abortion were passed by thirty states, usually by overwhelming margins. Within days of each new state law becoming effective, abortion advocates rushed to find an activist federal judge to slap an injunction against enforcement. The Supreme Court knocked out all these laws in Stenberg v. Carhart (2000), to the surprise of those who had not realized the full scope of Roe v. Wade. In his dissent in Stenberg, Justice Thomas wrote: "From reading the majority's sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it."
In 2003, Congress concluded that the Supreme Court had acted on faulty premises, and Congress passed a federal partial-birth abortion ban that attempts to conform to the Court's twisted logic. Abortion advocates again sought out activist judges to overturn the legislation, claiming that this gruesome procedure is medically necessary, but refusing to provide the medical records necessary to test their claim.
PUSHING FOR A GENDER-NEUTRAL SOCIETY
Roe v. Wade is the centerpiece of the feminization of the judiciary. This process was accelerated by the elevation to the Supreme Court of two women, neither of whom was questioned during her confirmation hearing about her extensive paper trail of feminist extremism.
Ruth Bader Ginsburg won early acclaim from the feminists because of her role as the attorney who wrote the amicus curiae brief which the ACLU filed in the 1973 Supreme Court case of Frontiero v. Richardson, one of the first attempts to get activist judges to rewrite U.S. laws in conformity with feminist ideology. Justice William Brennan's majority opinion articulated the feminist nonsense that American men, "in practical effect, put women, not on a pedestal, but in a cage," and "throughout much of the igth century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes."
Anyone who thinks that free American women were ever treated like slaves or were kept in a cage has a worldview that is a dangerous basis for Supreme Court decisions. Brennan is no longer on the Court, but we do have his soulmate, Ginsburg, who subscribes to the same foolish feminist fantasies and praised Frontiero as an "activist" decision.
Before Ruth Bader Ginsburg was nominated for the Supreme Court by President Clinton, she authored a book, Sex Bias in the U.S. Code, supporting the proposed federal Equal Rights Amendment. In that book, she advocated not only assigning women to military combat duty, but affirmative action for women in the military, sex-integrating everything from prisons to the Boy Scouts, and even changing 750 federal laws to censor all male nouns and pronouns because they allegedly discriminate against women.
Justice Ginsburg has long been on record as wanting cases to be decided on what she calls "the equality principle" (rather than on the Constitution). In her 1980 book, Constitutional Government in America, she endorsed taxpayer funding of abortions as a constitutional right (something that even the pro-Roe v. Wade Supreme Court rejected in Harris v. McRae in 1980).
When Ginsburg stood beside President Clinton in the Rose Garden the day he nominated her for the Supreme Court, she said she wished that her mother had "lived in an age when daughters are cherished as much as sons." Where did her mother live - in China? in India? Her statement was an insult to all American parents who do, indeed, cherish their daughters as much as their sons.
After she joined the Supreme Court, Ginsburg's major effort to aid the feminists' campaign to plunge us into a gender-neutral society was her sudden discovery in 1996 of a new entitlement for women to enroll at the Virginia Military Institute, a privilege nobody else had detected during VMI'S previous 157 years. She wrote the Court's opinion in United States v. Virginia ordering women to be admitted to Virginia Military Institute, and even smeared as "close-minded" those who believe there are inherent differences between men and women. Without any authority from the Constitution, Ginsburg led the Court into pandering to the feminist prejudice against the type of masculinity that was typical of VMI.
Ginsburg's feminist influence on other justices is seen in a 2003 decision that shocked observers, Nevada Department of Human Resources v. Hibbs. She didn't write the decision, but the feminist phraseology is unmistakably hers. The Court's tirade against "stereotypes" (a word used eighteen times), which supposedly "forced
women to continue to assume the role of primary family caregiver," echoes Ginsburg's prejudice against the concept of "breadwinning husband" and "dependent, homemaking wife," which she had expressed in Sex Bias in the U.S. Code. "Stereotyping" is a favorite bete noire of the feminists and often refers to the traditional view that children are best raised by a mother and father who are married to each other.
Ginsburg makes no secret of her continued close ties with the pro-abortion feminists. She lends her name and presence to a lecture series sponsored by the NOW Legal Defense and Education Fund, a feminist advocacy group that often files amicus briefs in support of feminist causes. Thirteen members of Congress have asked her to withdraw from cases having to do with abortion because of these ties, but she has refused.
The feminization of the judiciary led the federal courts to micromanage the athletic teams at Brown, a private university. A national leader in offering athletic opportunities to women, Brown made a budgetary decision to recast two men's and two women's sports teams as "intercollegiate" rather than "varsity," a change that affected more men than women.
But the feminists filed a class action lawsuit claiming sex discrimination under Title IX. Litigation spanned ten years and cost Brown over one million dollars in compelled payment of plaintiffs' attorney's fees. The courts ordered Brown to restore full funding for the two women's teams, though not the men's teams (Cohen v. Brown University, 1992 through 2003).
THE STEREOTYPICAL WOMAN
The other woman on the Supreme Court, Sandra Day O'Connor, had a similar record of feminist extremism as Ginsburg, and both women got a free pass in their confirmation hearings from the chivalrous men on the Senate Judiciary Committee.
O'Connor had served on a tax-funded feminist commission called the Defense Advisory Committee On Women In The Services (DACOWITS). The minutes of this group show that O'Connor "initiated" the discussion and made the motion in the Utilization Subcommittee in April 1975 urging Congress to repeal the laws that exempt women from military combat duty. Her motion was passed in the full DACOWITS year after year and resulted in a House hearing in 1979 where, fortunately, wiser men killed the proposed legislation. Assigning women to military combat duty is a priority item on the feminist agenda to propel us into a gender-neutral society.
With her feminist background, it is no surprise that O'Connor voted to keep abortion legal in Planned Parenthood v, Casey and voted for gay rights in Lawrence v. Texas. As a member of the Arizona Legislature, she voted repeatedly for pro-abortion bills, and she co-sponsored ratification of the federal Equal Rights Amendment (which Arizona refused to ratify).
The feminization of the Court has played a major factor in creating the problem of judicial supremacy. Numerous decisions for which O'Connor has been the swing vote have had an insidious effect. She is the judicial personification of the stereotype that a woman will change her mind, be unpredictable, and make decisions that are inconsistent and unfathomable to rational men.
Elevated to the Court by President Reagan, she has positioned herself as the ultimate centrist whose opinions cannot be predicted because they blow with the wind and follow no logical pattern. Since the Supreme Court is split between liberals and conservatives, O'Connor has become the deciding vote in many important cases and revels in the accolades of the liberal media who call her the most powerful woman in America. She is credited with being the deciding vote in many 5 to 4 decisions on major issues of public policy, including abortion (Planned Parenthood v. Casey, 1992), partial-birth abortion (Stenberg v. Carhart, 2000), vouchers to religious schools (Zelman v. Simmons-Harris, 2002), racial preferences in university admissions (Gruffer v. Bo/linger, 2003), and campaign finance reform (McConnell v. FEC, 2003).
Lacking any consistent ideology or respect for the separation of powers, O'Connor claims to base her rulings on such nebulous and equivocal "tests" as "undue burden," "an appearance of endorsement," or "a reasonable observer."
The problem with these 5 to 4 decisions is not that they are close calls, but that under the current regime of judicial supremacy, in which the legal community accepts a 5 to 4 decision as the law of the land, all these issues will be constantly re-litigated because no one can predict how similar cases will be decided. Nobody knows what the law is; it depends on the whim of the swing justice.
The legal community continues to propagate the unconstitutional notion that the Constitution is whatever the Supreme Court says it is, but are less and less confident of what the Supreme Court will say. The result is that Justice O'Connor is responsible for concentrating more and more power in the Supreme Court to resolve intricate matters of public policy.
O'Connor's devotion to judicial supremacy was made clear by her opinion in PlannedParenthood v. Casey: "So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals."
She claims our "belief" in "the rule of law" requires us to accept a Court "invested with the authority" above "all others" to decide what are our "constitutional ideals."
In other words, belief in the rule of law requires that Americans allow the Supreme Court to be the sole interpreter of the Constitution even if that means upholding an obviously wrong decision.
The truth is just the opposite. We are not living under the rule of law so long as unaccountable judges are allowed to exercise the sole authority to invent new and contrary interpretations of the Constitution and of laws passed by our elected representatives. That is rule by an oligarchy of judges, not the rule of law.
We hope some day we will have a woman on the Supreme Court who is a real judge, not a feminist or a politician. President Bush has nominated several good women judges to the U.S. Court of Appeals, but the Democrats defeated them on cloture votes. They include Janice Rogers Brown of the California supreme court, Priscilla Owen of the Texas supreme court, and Carolyn Kuhl of the California superior court. It appears that the Democrats are more afraid of women constitutionalist judges than of male judges.
Judges Handicap Law Enforcement
SUPREME COURT JUSTICES seem to think that criminals need protection from the police. The Warren Court rewrote criminal law and police procedures in a series of cases, starting with Escobedo v. State of Illinois (1964), which dissenting Justice Stewart wrote ". . . frustrates the vital interests of society in preserving the legitimate and proper function of honest and purposeful police investigation."
The most famous Warren Court interference with law enforcement was Miranda v. Arizona (1966). The Miranda warning doesn't seem so radical today, but it was at the time, and Miranda was then applied in a radical way to cripple law enforcement.
Consider the 1968 Iowa case of Robert Anthony Williams, who was arrested in connection with the disappearance of a young girl. He invoked his right to a lawyer, and while a couple of police officers were driving him to see his lawyer, one policeman spoke what became known as the "Christian burial speech":
    I want to give you something to think about while we're traveling down the road----Number one, I want you to observe the weather conditions, it's raining, it's sleeting, it's freezing, driving is very treacherous, visibility is poor, it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I felt that we could stop and locate the body, and that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snowstorm and possibly not being able to find it at all...I do not want you to answer me. I don't want to discuss it any further. Just think about it as we're riding down the road.
Williams subsequently led the police to the little girl's body. The Supreme Court overturned Williams's conviction in Brewer v. Williams (1977), saying that the case was tainted by police misconduct and the discovery could not be used as evidence. Nearly everyone else thought the police work was outstanding.
IMPEDING CAPITAL PUNISHMENT
In spite of the fact that the Constitution specifically authorizes capital punishment, in 1972 the Supreme Court threw out three death penalty convictions in Furman v. Georgia, claiming they were violations of the Eighth and Fourteenth Amendments. The decision called on the states to "rethink" their death penalty laws, effectively knocking out death penalty laws everywhere and halting all executions. Furman included two hundred pages of concurrence and dissent, with Justices Brennan and Thurgood Marshall arguing that the death penalty is unconstitutional in all cases.
Apparently the judicial supremacists thought that their rewriting of the Constitution on capital punishment would end the matter. But public resolve in favor of retribution for heinous crimes remained strong, and most states passed new death penalty laws for first-degree murder with aggravating circumstances.
A current example of how activist judges engage in the evolution of the so-called living Constitution was provided by the Supreme Court in Atkins v. Virginia (2002). Justice John Paul Stevens rewrote the Eighth Amendment to outlaw capital punishment for those with low IQ scores. Stevens could not base his ruling on the Constitution, since it endorses the death penalty, so he relied on "evolving standards" and "polling data."
Justice Stevens apparently thinks that our laws can be made by his interpretation of public opinion polls instead of by our elected representatives. Justice Scalia properly rebuked him, retorting that Atkins really was based on "nothing but the personal views" of the justices.
This ruling has thrown death penalty enforcement into chaos, as no one knows what are the IQ.requirements for execution, how and when IQ. tests are to be administered, or what are the procedures for bringing a IOW-IQ claim. Even if there is a consensus that IOW-IQ murderers should not be executed, these issues should be resolved by the legislature, not by the courts ad hoc. Did Stevens want to disrupt death penalty enforcement?
In In re Stanford(2002), four Supreme Court justices tried to say it is unconstitutional to execute a juvenile (such as the convicted seventeen-year-old Washington, D.C., sniper). They said: "Scientific advances such as the use of functional magnetic resonance imaging - MRI scans - have provided valuable data that serve to make the case even stronger that adolescents 'are more vulnerable, more impulsive, and less self-disciplined than adults.'"
MRI scans are very useful for certain medical diagnoses, but are not suitable for constitutional diagnosis.
Some judges arrogantly think they should be sheltered from criticism by the other branches of government. Congress passed an innocuous law asking the Justice Department to report on whether federal criminal sentencing is within the official guidelines. A federal judge in California declared the law unconstitutional (U.S. v. Mendoza, 2004) because the dissemination of information might generate criticism of the judiciary. It is ridiculous to think that the Imperial Judiciary may prohibit the legislature from asking the executive branch for some information just because the judiciary might be criticized. Whatever happened to freedom of speech?
House Judiciary Committee Chairman F. James Sensenbrenner Jr. made a blunt speech to the U.S. Judicial Conference on March 16, 2004, regarding congressional oversight of the judiciary:
In a letter to me dated November 7,2003 this body (the Judicial Conference of the United States) objected to 'the dissemination of judge-specific data on sentencing in criminal cases,' and suggested that "Congress should meet its responsibility to oversee the functioning of the criminal justice system through use of this data without subjecting individual judges to the risk of unfair criticism in isolated cases."
I have been perplexed as to why such furor has been raised over obtaining records from a judge's publicly decided cases. Assuredly, federal judges in a democracy may be scrutinized, and may even be "unfairly criticized." Subject to removal from office upon conviction of impeachment, Article in judges have been given lifetime tenure precisely to be better able to withstand such criticism, not to be immune from it. That the Congress, the elected representatives of the people, may obtain and review the public records of the Judicial branch is both Constitutionally authorized and otherwise appropriate. Over 200 years of precedents show that the Judiciary as a collective body, or an individual judge, is subject to Congressional inquiry.
Unfortunately, Congress doesn't very often use its constitutionally authorized power over the judiciary.
Judges Interfere with Elections
FOR THE FIRST 174 YEARS after our Constitution was adopted, the reapportionment of state legislatures was considered a "political question" to be resolved by the legislative branch. "Courts ought not to enter this political thicket," the Supreme Court ruled in Colegrove v. Green (1946).
Then suddenly, in Baker v. Carr (1962), Justice William J. Brennan led the judicial supremacists into the thicket. Asserting the "responsibility of this Court as ultimate interpreter of the Constitution," he ruled that courts could redraw the boundaries of legislative districts. Justice Frankfurter, in dissent, joined by Justice Harlan, wrote that the Baker <v. Carr decision was "... a massive repudiation of the experience of our whole past in asserting destructively novel judicial power. . . ."
Reapportionment was another new area where the judicial supremacists of the Warren Court seized legislative powers. The next step after Baker was Chief Justice Earl Warren's majority opinion in Reynolds v. Sims (1964). The Supreme Court ruled that population (that is, one-man-one-vote) must be the primary consideration in apportionment plans for both houses of state legislatures. This forbade state legislatures from imitating the pattern of Congress, where one house is apportioned by population and the other by geography.
Further enunciating notions of judicial exclusiveness, Chief Justice Warren wrote in Powell v. McCormack (1969), "It is the responsibility of this court to act as the ultimate interpreter of the Constitution."
On the contrary, the U.S. Constitution does not make the Supreme Court "the ultimate interpreter of the Constitution." Such language originated with the judicial supremacists. Justices Warren and Brennan were leaders in the revolution that was taking place, case by case, to dismantle the separation of powers and replace it with judicial supremacy.
The Supreme Court's disdain for the right of the people to govern ourselves was pointed out by Justice Clarence Thomas in his brilliant dissent in U.S. Term Limits v. Thornton (1995):
It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them." Under our Constitution, there is only one State whose people have the right to "choose whom they please" to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to "choose whom they please to govern them" by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State.
BUSH V. GORE
The Bush-Gore election in 2000 is a case in which state court judicial supremacists caused unprecedented problems. The Florida ballots had been counted and recounted according to pre-election procedures. All ballot procedures had been approved by both major parties before the election, and Florida was about to certify the election in an orderly way. Al Gore was free to present evidence of fraud or other misconduct, but he had no such evidence and lost his challenge in the trial court.
Then the judicial supremacists on the Florida supreme court threw the election into chaos. They seized on Gore's argument that a different recount method might have yielded a different outcome and ordered a peculiar recount invented by the judges in order to maximize Al Gore's chances.
The Florida supreme court supremacists, in their extraordinary conceit, operated on the premise that because they were high-ranking judges, they could devise and require a recount scheme superior to the one prescribed by pre-election rules. That premise is nonsensical and undemocratic. It is absolutely essential to democratic elections to count the votes according to the rules agreed to before the election begins. Any deviation from the procedure agreed upon in advance makes the election less fair.
During the Supreme Court oral argument on Bush v. Gore, Justice Sandra Day O'Connor enunciated the best rule about what standard to apply in ballot recounts: "Why isn't the standard the one that voters are instructed to follow, for goodness' sakes? I mean, it couldn't be clearer."
Yes, the ballots should be counted in accord with the instructions provided to the voters before they vote.
The wild activism of the Florida court cried out to be stopped by someone. Fortunately, the U.S. Supreme Court put an end to the crazy post-election recount scheme invented by the Florida judicial supremacists.
Unfortunately, the Supreme Court failed to identify state court judicial supremacy as the cause of the postelection turmoil in Florida. Probably because too many Supreme Court justices are federal judicial supremacists, they didn't want to criticize state judicial supremacists. The majority opinion held only that & judicially ordered recount must satisfy minimal equal protection standards.
The Supreme Court decision in Bush v. Gore was widely criticized on federalism grounds by those who thought that the Supreme Court should have deferred to the Florida state judicial supremacists. But the Supreme Court effectively and properly deferred to Florida's legislative and executive branches, while halting the Florida judiciary's interference in the election. Justices Souter and Breyer agreed that the Florida supreme court was interfering with the election in an unconstitutional manner, but they still wanted to use federal judicial supremacy to order their own peculiar recount schemes.
The Supreme Court annoyed many commentators who believe in judicial supremacy by saying that the Bush v. Gore ruling applies only to the "present circumstances." But of course all rulings should apply only to the case before the court. Courts are not supposed to concoct laws or rules to apply to people who are not parties to the case. As the Kennedy-Rehnquist-O'Connor-Scalia opinion stated in Missouri v. Jenkins, it would be "a blatant denial of due process" to apply its decision to "persons who have had no presence or representation in the suit."
But the judicial supremacists have become so accustomed to believing that Supreme Court decisions are the law of the land - instead of merely a decision on the controversy before the court - that it caused much comment when the justices restricted Bush v. Gore to that particular case.
THE CALIFORNIA RECALL
The California constitution has a provision for recalling a governor so he can be replaced without waiting for the next election. A populist movement in 2003 gathered the necessary petitions to recall Governor Gray Davis, and a recall election was scheduled.
With the election already underway and absentee ballots being collected, the Ninth Circuit U.S. Court of Appeals ruled 3 to o that the election must be postponed. Many concluded that the judges were trying to help the Democrats, but the announced reason was that there was a likelihood that the ACLU could prove in a trial that new touch-screen computerized ballots would be more accurate than the system California had used for decades.
This decision was in the face of overwhelming evidence from academics and voter registrars that an abrupt switch to new voting technology would create its own problems and errors among voters and poll personnel. If the punch-card ballot were really illegal as the court maintained, then how could Governor Davis's original election be valid, since punch cards were used then?
The relative merits of punch-card and touch-screen ballots are not the issue. Such controversies are routinely 
resolved in our political system without any help from judges. The threat to self-government comes from judges who interfere with an ongoing election. The California judicial supremacists said they had to suspend the election in order for the United States to set a good example for other countries. The court said in Southwest Voter Registration Education Project, v. Shelley (2003): "... this is a critical time in our nation's history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos . . . ."
Did those judges really think that the California recall election would be so chaotic that it would set a bad example for Iraq and Afghanistan? If anything, the Ninth Circuit showed us that judicial supremacists could derail an election at the last minute and create real chaos. No democratic country should ever permit judges to postpone or cancel an election. It is essential that elections proceed as scheduled.
The trial judge had found nothing objectionable about the California recall election. The only evidence cited by the three Ninth Circuit judges was that the ACLU wanted to cancel the election; that the Secretary of State had agreed to phase out punch cards; and that a study showed that touch-screens were superior to punch cards. But the study was funded by a major provider of touch-screen voting machines.
To try to justify an order to switch to a new system, the judges used some meaningless buzzwords to suggest that a perfectly good election procedure needed a high-tech replacement: ". . . the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punch-card voting systems used in some California counties are intractably afflicted with technologic dyscalculia." (Judicial supremacists, elistist that they are, love to lace their opinions with words the voters don't understand.)
As it turned out, the Ninth Circuit judicial supremacists lost their nerve, and the full court let the election proceed as scheduled. The voters elected Arnold Schwarzenegger in a fair election with ordinary ballots. California counties then spent millions of dollars on computerized touch-screen election equipment, but controversies remain. On April 30, 2004, the California secretary of state banned the use of fourteen thousand touch-screen machines because of security and reliability concerns, and "decertified" an additional twenty-eight thousand until their security could be upgraded.
The court's analysis of voting systems was naive and technically flawed, as well as legally and politically abominable. It is scary to think how close we came to letting judges sabotage the most important California election in years, and there is no indication that the judges have retreated from their supremacist attitudes.
SHENANIGANS IN NEW JERSEY
The liberals in politics, media, and the judiciary have popularized the notion that an election loser can use the courts to change the rules that were in place before the election. This is a very bad idea; not even banana republics let judges interfere with elections.
In the 2002 New Jersey Democratic primary for the U.S. Senate, the incumbent Senator Robert Torricelli easily won renomination. He then dropped dramatically in the polls following corruption charges and announced his intention to withdraw. But the general election had already begun; ballots had been printed, overseas military ballots had been mailed, some servicemen had already voted, and the legal deadline for substituting another candidate had passed.
New Jersey law clearly states that a name can be substituted on the ballot "in the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the fifty-first day before the general election." When Torricelli announced his intention to withdraw, it was only thirty-six days before the election.
So the Democrats asked the New Jersey supreme court to rewrite the law.
The New Jersey judicial supremacists accommodated the Democrats and changed the rules, holding that it "should invoke its equitable powers in favor of a full and fair ballot choice for the voters of New Jersey." One has to wonder about the remarkable confidence the Democratic Party had that the New Jersey supreme court would maneuver around the clear deadline in the law when Torricelli was pressured to pull out.
The problem with the court's decision is that no change in the rules during or after an election can ever be fair. The only way to hold an honest election is to have an agreed-on procedure in advance and follow preelection rules, whether or not one side later objects, and even if hindsight can invent a better system. If judges are allowed to manipulate elections by changing the rules in the middle of or after the election, then we can expect crooked elections.
Judges Impose Taxes
A PRIME EXAMPLE of judicial supremacist mischief ivas the federal district court's imposition of increased properly taxes in Kansas City to pay for the world's most extravagant public school facilities. In Jenkins v. Missouri (1985), the district court simply ignored the principle that the taxing power is a purely legislative function, definitely not one for the courts. James Madison wrote in Federalist 48: "The legislative branch alone has access to the pockets of the people."
This highly controversial case bounced around in federal courts for years. When it finally reached the Supreme Court in Missouri v. Jenkins (1990), Justice Anthony Kennedy's opinion, joined by Justices Rehnquist, O'Connor and Scalia, concurred in part with the majority decision to uphold the court-ordered tax, but included a scathing indictment of judicial supremacists:
   The Court... goes further, much further, to embrace by broad dictum an expansion of power in the federal judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions. . . .
The judicial taxation approved by the Eighth Circuit is also without parallel.... The description of the judicial power nowhere includes the word "tax," or anything that resembles it. This reflects the Framers' understanding that taxation is not a proper area for judicial involvement.... A judicial taxation order is but an attempt to exercise a power that always has been thought legislative in nature. . . .
The judiciary is not free to exercise all federal power; it may exercise only the judicial power. . . . The power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. . . . The power of taxation is one that the federal judiciary does not possess.
We often hear it said that Supreme Court decisions are the law of the land, not merely the law of the case. That heresy has crept into conventional wisdom over the last fifty years. This concurring opinion by four justices, warning that Missouri v. Jenkins "cannot be seen ... as precedent for the future," shows that, every now and then, the justices recognize that their decisions should apply only to the parties involved in the case before them.
The four justices' opinion explained the sequence of how such overreaching decisions evolve. "Judicial taxation" was first endorsed in dicta in Eighth Circuit cases in which taxation orders were in fact disapproved. Then the activist judges on the Eighth Circuit built on the dicta and, for the first time in history, ordered judicial "taxation to fund a remedial decree."
Again and again in this concurring opinion, Justices Kennedy, Rehnquist, O'Connor, and Scalia reminded the Supreme Court majority that they have no constitutional authority to tax the American people. Continuing to point out the overreaching of Missouri v. Jenkins, this opinion states that imposing a tax wasn't even necessary to achieve the goal of providing equal protection to minority schoolchildren.
The four justices' opinion concludes by saying that Missouri v. Jenkins "is a stark illustration of the ever-present question whether ends justify means."The judicial supremacists opted to pursue the end of integrating Kansas City schools not only by violating the Constitution but by ordering unprecedented taxes to pay for an incredibly costly capital improvement plan that included
high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animals rooms for use in a Zoo Project; swimming pools; and numerous other facilities.
All that tax-funded extravagance turned out to be a colossal waste. Not only did the end not justify the means, but the desired end wasn't even achieved. Two decades and billions of dollars later, the Kansas City schools are just as segregated as ever and test scores are just as low.
BULLYING NEVADA S LEGISLATURE
Some state court judges have also swallowed the heresy that judges can impose taxes.
Nevada voters approved a constitutional amendment by a wide margin in 1996 to require a two-thirds vote in the state legislature for new or increased taxes. In 2003, the Nevada legislature was deadlocked in a budget dispute and had to either raise taxes or cut spending in order to balance the budget. The governor wanted a tax increase, so he persuaded the Nevada supreme court to issue an advisory ruling that the legislature could pass a tax increase with a simple majority (ignoring the two-thirds constitutional requirement).
The legislature then did precisely that, allowing itself to be bullied by the judicial supremacists on the state court. The Speaker of the Assembly declared the tax increase passed, based on the court's opinion in Guinn v. Legislature of the State (2003).
The Nevada court rationalized its opinion by saying that the constitutional mandate to fund education was more important than the procedural limit on tax increases. But Nevada did not have to raise taxes in order to fund education. It could have just funded education at previous levels.
Taxation and funding decisions should always belong to the people and their elected representatives, not to judges. In order to avert a constitutional crisis, the legislature later repassed the tax increase with a two-thirds vote.
The Las Vegas Review later reported that the Nevada supreme court decision was an advance deal between the governor and the court, that the governor spoke with the supreme court judges at the beginning of the budget battle and received assurances from them that the court would approve his proposed tax hike.
How Judicial Supremacy Began
FEDERAL JUDGES AND LAW PROFESSORS all Say that the most important legal case in American history is the U.S. Supreme Court case of Marbury v. Madison (1803). They assert that this case established the principle of judicial review and made it central to our legal and political system.
Marbury v. Madison was, in fact, a narrowly decided case. It became significant because of the way that later judges have used it. The facts were simple, but the opinion is convoluted. Thomas Jefferson called it "merely an obiter dissertation of the Chief Justice."
In the last days of his administration, President John Adams appointed William Marbury to the minor office of justice of the peace, but the formal commission was never delivered to him. After Thomas Jefferson became president, Marbury sued, asking the court to issue a writ of mandamus ordering Secretary of State James Madison to deliver Marbury's commission. Chief Justice John Marshall ruled that the congressional law authorizing the Supreme Court to issue writs of mandamus to public officers was unconstitutional, so the Court could not issue the writ and Marbury didn't get the job.
One sentence in John Marshall's decision articulated the power of judicial review and the Court's authority to declare laws unconstitutional: "It is emphatically the province and duty of the judicial department to say what the law is." Ever since, judges and law professors have promoted the power of judicial review even though it was not spelled out in the U.S. Constitution itself.
There is no quarrel with judicial review in the way it was carried out in Marbury. If a law is clearly unconstitutional, the courts should not enforce it. Judicial review is a long, long way from the judicial supremacy we suffer from today.
Marbury v. Madison was actually a model of judicial restraint, not an activist decision. Marshall narrowly construed the Court's own powers and refused to accept what he thought was an unconstitutional grant of power by Congress to the courts. Marshall then refused to interfere with the presidential appointments.
The two sentences that immediately follow the famous line quoted above show that Marshall simply meant that the courts should apply the law in particular cases and resolve any conflict between two laws as necessary to decide the case. Later in Marbury, Marshall wrote that the Constitution is "a rule for the government of courts, as well as the legislature" and that "courts, as well as other departments, are bound by that instrument." Marbury v. Madison, therefore, did not give us judicial supremacy. Marbury did no damage to our separation of powers.
It was fifty-four years before the Supreme Court declared another federal law unconstitutional. During all those years, our nation's leaders understood the proper role of the judiciary, and they never espoused any theories of judicial exclusiveness. For example, President Andrew Jackson's veto of the bill to recharter the Bank of the United States (July 10,1832) stated: "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."
Jackson's often-quoted remark in regard to another controversy, "John Marshall gave his opinion, now let him enforce it," may be apocryphal. But if he didn't say it, he might have said it because presidents and justices in those years knew and accepted their proper role under the separation of powers, recognizing that we should not permit one court opinion to decide major policy questions.
EMBARRASSMENT FOR SUPREMACISTS
The judicial supremacists like to cite Marbury v. Madison because it is just too embarrassing to cite the case that really started judicial supremacy: Dred Scott v. Sanford (1857), the first case in which the Supreme Court tried to expand its power over other branches of government. It was for many reasons one of the most disastrous court decisions in history.
Dred Scott was a black slave who traveled to free territories and then sued for his freedom. Instead of simply deciding the controversy, the Supreme Court handed down an aggressively activist, judicially supremacist, pro-slavery decision. It dismissed Dred Scott's complaint, saying that he didn't even have the right to be a plaintiff in a lawsuit: blacks "had no rights which the white man was bound to respect," and even the free blacks in the Northern states didn't have the right to be citizens. The Court declared unconstitutional the federal law, passed in 1820 as part of the Missouri Compromise, forbidding slavery in most of the Western territories. It was only the second federal law in history declared unconstitutional.
The Constitution limits the jurisdiction of the federal courts to "cases and controversies." Federal courts are not supposed to give advisory opinions about issues that are not before them as a case or controversy. Dred Scott is a good example of the Court trying to decide issues that were not necessary to its decision, and the Court ended up causing gross injustices.
Abraham Lincoln refused to accept that the Supreme Court could set public policy, and he endured much criticism for attacking the Dred Scott decision. But Lincoln was absolutely correct in identifying not only the intrinsic wrongness of the decision, but also its terrible consequences in upsetting our form of government.
In his First Inaugural Address (March 4, 1861), Lincoln admitted that the Supreme Court decision was personally binding on plaintiff Dred Scott, but Lincoln expressed the hope that its "evil effect" would be "limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases." In other words, Lincoln accepted judicial review as binding in the case, but he rejected judicial supremacy - the notion that the Supreme Court was supreme in creating new laws for the nation - because that would abolish self-government and submit us to the rule of judges. Lincoln identified the evil of judicial supremacy: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Precisely. Lincoln agreed that the Supreme Court could decide the fate of Dred Scott. But he rejected the notion that an "eminent tribunal" should be allowed to make public policy. That would mean submitting to the rule of judicial supremacists rather than to the Constitution and the rule of law.
Lincoln defied the Dred Scott opinion by issuing passports to blacks and otherwise treating them as citizens, and he signed legislation to place limits on slavery in the Western territories. The Dred Scott decision exacerbated the conflict over efforts to restrict slavery and pushed our country toward a terrible war to correct the injustice wrought by the power-grabbing Supreme Court.
Unfortunately, later generations forgot the principles of our Constitution that Lincoln so clearly understood. It's time we listened to his wisdom.
Anyone who thinks that we need judicial supremacy to protect the rights of minorities must accept that judicial supremacists gave us the injustice of the Dred Scott decision. Anyone who thinks we need judicial supremacists to protect civil rights should remember George Washington's warning that we should permit the Constitution to be amended only in the way. that the Constitution provides: "Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
How Judicial Supremacy Grew
A HUNDRED YEARS WENT BY after Dred Scott v. San-ford, then came the gigantic grab for judicial supremacy led by Chief Justice Earl Warren. Warren was a politician who had no previous judicial experience. His ideology was so mixed that both Republican and Democratic parties nominated him for governor of California. He was appointed to the Supreme Court as the political payoff for delivering the sixty-eight votes of the California delegation to help Dwight Eisenhower defeat Robert A. Taft at the 1952 Republican National Convention. Ike later admitted that he regretted the appointment.
As California's attorney general, Warren had presided over the infamous internment of Japanese-Americans during World War n. After he assumed the title of Chief Justice, he seemed to believe he could use Supreme Court decisions to write his own political views into law.
No sooner was Warren confirmed as Chief Justice than he began to assert judicial supremacy, overturning established laws about criminal procedures, prayer in schools, internal security, obscenity, and legislative reapportionment. In those days, not only the public but the legal community spoke out vigorously against the high-handed, wrong-headed decisions of what became known as the Warren Court.
Even the associate justices on the Warren Court realized that Supreme Court decisions were going so far afield from proper judicial authority that they were in fact amending the Constitution. Justice Hugo Black dissenting, joined by Justice Tom Clark, wrote that the New York criminal law knocked out in the Jackson v. Denno decision (1964) "... should not be held invalid by the Court because of a belief that the Court can improve on the Constitution."
Justice John Harlan, in dissent, wrote that the Court's action in Reynolds v. Sim?, (1964)"... amounts to nothing less than an exercise of the amending power by this Court. . . . For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process."
ASSAULT ON INTERNAL SECURITY
In 1957 the American Bar Association (ABA) Committee on Communist Tactics, Strategy and Objectives, chaired by Herbert R. O'Conor, a former Democratic U.S. Senator from Maryland, presented the annual ABA Convention delegates with a stinging criticism of fifteen decisions in which the Warren Court had ruled in favor of Communists and against U.S. internal security. At that time, Soviet Communism was the greatest threat to American security. Communist spies had infiltrated high levels of our government and stolen our atomic bomb secrets.
All fifteen decisions were reversals of lower court decisions. Most of them voided laws or procedures which the ABA Committee, the Congress, and the American people believed were necessary to protect our national security. The ABA report pointed out that "the repeal or the weakening of these anti-Communist laws and committees is in the forefront of the program of the Communist Party of the United States." (See Appendix for the list of cases.)
Pennsylvania v. Steve Nelson, one of those fifteen cases, was an example of the new Warren Court doctrine of making law for the whole country instead of just deciding only the case before the Court. The Supreme Court not only held it was unlawful for Pennsylvania to prosecute a Pennsylvania Communist Party leader under the Pennsylvania Sedition Act, but indicated that the anti-sedition laws of forty-two other states (which were not parties to the case) likewise could not be enforced.
The ABA report emphasized that many of the cases represented a direct attack on the authority of Congress to conduct investigations in order to do its job of legislating. Prior to the Warren Court, the Supreme Court had always refused to interfere with the investigative function of congressional committees. A unanimous Court had ruled in McGrain v. Daugherty (1927): "The power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose."
But the Warren Court demonstrated its disrespect for Congress's constitutional authority to conduct investigations by drastically clipping Congress's investigative and legislative powers, as well as powers of the executive branch and of federal and state law enforcement agencies to protect our national security.
The media treated the ABA report as big news. Headlines in New York newspapers proclaimed: "Bar Association Told High Court Weakens Security Against Reds" and "Warren Court Kicked in Teeth." U.S. News fcf World Report published the text of the ABA report.
U.S. News & World Report also published an analysis by Senator James O. Eastland of the way the Warren Court ran roughshod over laws and procedures for the benefit of the Communists. This included a tally on whether the individual justices voted to uphold the position advocated by the Communists or not. Hugo Black voted to uphold the Communist position in every one of seventy-one decisions. William O. Douglas voted for the Communists in sixty-six cases, against them in three. Felix Frankfurter's score was fifty-six to sixteen. Earl Warren's score was thiry-six to three. William Brennan's score was eighteen to two. Senator Eastland showed that "the Court has been expanding its usurpation of the legislative field and purporting to make new law of general application which will be favorable to the Communist position."
In the early days of the new era of judicial supremacy, Congress and the media had the courage to speak out against Supreme Court arrogance. Close observers clearly understood that the Warren Court was making dramatic departures from previous Courts, that it was boldly seizing legislative functions, and that Congress had a duty to halt the Court's assault on other branches of government. On August 7,1957,tne Senate Subcommittee on Internal Security held a hearing on the "Limitation of Appellate Jurisdiction of the United States Supreme Court" at which Senator William E. Jenner testified: "There was a time when the Supreme Court conceived its function to be the interpretation of the law. For some time now, the Supreme Court has been making law - substituting its judgment for the judgment of the legislative branch. •.. We witness today the spectacle of a Court constantly changing the law, and even changing the meaning of the Constitution, in an apparent determination to make the law of the land what the Court thinks it should be."
After spelling out how the Supreme Court had indulged in unprecedented activism in the areas of criminal procedure and property law, Jenner addressed himself particularly to the Supreme Court's decisions that dismantled U.S. internal security:
What shall we say of this parade of decisions that came down from our highest bench on Red Monday after Red Monday? The Senate was wrong. The House of Representatives was wrong. The Secretary of State was wrong. The Department of Justice was wrong. The State legislatures were wrong. The State courts were wrong. The prosecutors, both Federal and State, were wrong. The juries were wrong. The Federal Bureau of Investigation was wrong. The Loyalty Review Board was wrong. The New York Board of Education was wrong. The California bar examiners were wrong. The California Committee on Un-American Activities was wrong. The Ohio Committee on Un-American Activities was wrong. Everybody was wrong except the attorneys for the Communist conspiracy and the majority of the United States Supreme Court....
That is why we in Congress must fulfill our plain duty and act immediately in the way the Constitution empowers us to act, to repair as much of the damage as we can and prevent even worse damage in the future.
But Congress failed to do its plain duty. Congress did not act to protect the authority of the legislative branch against judicial tyranny.
So the judicial supremacists keep seizing more and more power over the other branches of government in many areas of law, and Americans are still suffering the consequences.
MISREADING MARBURY V. MADISON
The case that gave legal life to the false but now widely held concept of judicial supremacy is Cooper v. Aaron (1958). It wasn't the decision itself, but the extra unnecessary language in the opinion that facilitated the justices' grab for power.
The facts in this case were fairly simple. Desegregation of the public schools in Arkansas in 1958 was highly controversial. The Little Rock school board sought a postponement of the desegregation program and won approval in the U.S. District Court. That decision was ? reversed by the U.S. Court of Appeals, and the Supreme ! Court affirmed the appellate court's decision to go forward with immediate desegregation. The Court could \ have ended its opinion right there. Indeed, the Court i admitted this, stating: "What has been said, in the light of the facts developed, is enough to dispose of the case."
But instead of confining itself to implementing the timetable for desegregation ordered by the Court of Appeals, the Supreme Court immediately added a "However" and proceeded to use the desegregation issue to elevate the federal judiciary to the most powerful branch of government. Claiming that it was quoting "some basic constitutional propositions which are settled doctrine," Cooper v. Aaron asserted that John Marshall's famous line from Marbury v. Madison (1803) had "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land...."
None of this was "settled doctrine." Cooper v. Aaron was not merely a restatement of Marbury v. Madison. Marbury v. Madison did not claim that "the federal judiciary is supreme."The notion was not a "basic principle." No such supremacy theory had previously been recognized as an "indispensable feature of our constitutional system." No one before had ever asserted that a Supreme Court decision is "the supreme law of the land." The Constitution clearly defines the supreme law, and the judiciary is not part of the definition.
When judges ramble on in their opinions with discussions that are unnecessary to the decision, their extra words are called "dicta." Dicta have been with us from the beginning of the federal courts, but in the 19505 the Warren Court began pretending that dicta were part of the decisions. These gratuitous words have now become so common in court opinions that many people don't realize that they are beyond the scope of judicial authority.
Many mistakenly believe that Brown v. Board of 'Education was the landmark case that changed everything, but it wasn't. Brown simply reversed the Court's 1896 pro-segregation decision of Plessy v. Ferguson. The vast expansion of judicial authority by the Warren Court was not caused by Brown v. Board of Education.
Cooper v. Aaron was the case that grabbed judicial exclusiveness and supremacy over the other branches of government. And it was all so unnecessary to accomplish the goal of school desegregation. Cooper was the work of a petty politician, Earl Warren, reaching for power to which he was not entitled. Then, having gotten by with Cooper v. Aaron's grab for power by intimidating anyone who might challenge it, the judicial supremacists extended their new authority into other areas.
More and more frequently, we began to hear the refrain that the U.S. Constitution is whatever the Supreme Court says it is. This concept did not originate with the Constitution, and it did not come from Marbury v. Madison. It is an outrageous assertion of judicial exclusiveness that dates from unprecedented overreaching by the Warren Court.
The concept of judicial supremacy has now become so ingrained in our legal culture that many people wonder how our society could function without it. In fact, it was only the Warren Court in the 19505 and 19605 that embedded judicial supremacy in legal doctrine and conventional wisdom. What is needed today is for judges to return to their traditional respect for the Constitution and its separation of powers into three branches.
How to Stop Judicial Supremacists
OUR TASK IS TO EXPUNGE the un-American notion of judicial supremacy by using the checks and balances built into our great United States Constitution. We must stop the judicial supremacists who have been systematically dismantling the architecture of our unique, three-branch constitutional republic and replacing it with an Imperial Judiciary. Since the legal community has a vested interest in the status quo, this task must be undertaken by grassroots Americans. We must raise a mighty demand that Congress do its duty. Out-of-control federal and state judges who believe in and advocate judicial supremacy over the other branches of government are trying to write new laws and to invalidate laws and practices that have been part of American life for centuries. If the American people don't stand up for the Pledge of Allegiance, the Ten Commandments, and the sanctity of marriage, what do we stand for?
The American people must not acquiesce in illicit grabs for power by federal and state judges who censor and overturn our precious laws and traditions. We must reject the notion that judges' orders in particular cases are the law of the land that we must all obey. Congress, the executive branch, and the American people must use every peaceful weapon at our disposal.
We must press forward with the task of confirming nominees who respect the Constitution. We must also deal with the problem of the activist judges who are undermining the Constitution under the shield of life tenure. Hundreds of judicial supremacists with lifetime appointments are on the federal bench today and could be there for decades more.
We must also address the problem of judges who become activists and supremacists after they don their black robes and become heady with their new powers.
President George W. Bush's 2004 State of the Union Address, which targeted "activist judges" as the enemy of traditional values and urged us to use "the constitutional process" to remedy their mischief, was spoken in the con^ text of the threat to the traditional definition of marriage. His remarks are equally applicable to other institutions that are precious to Americans, including the Pledge of Allegiance and the Ten Commandments.
Here are ten steps to terminate the rule of judges and restore constitutional self-government.
I.  REFORM SENATE RULES
It is vitally important that all President Bush's constitutionalist nominees to the federal bench be confirmed by the U.S. Senate. The stakes in the 2004 presidential election are higher than ever because we have not had a vacancy on the Supreme Court in ten years, and the man who is elected president in November 2004 may have the opportunity to fill four vacancies. New Supreme Court justices could decide policy for Americans for the next half century.
The Senate must reform its rules so that the liberals are not able to continue to defeat constitutionalist nominees by preventing the Senate from voting them up or down. We should not eliminate the filibuster; we should make it a fair and workable process.
The current Senate Rule xxn requires sixty senators (three-fifths of the entire U.S. Senate) to close debate and proceed to a vote. That means that Republicans must have all sixty votes on the floor to break a filibuster, but the Democrats can keep the filibuster going with only a single Senator on the floor (to call for a quorum). By this method, the Democratic minority in the Senate has won sixteen cloture votes and successfully blocked President Bush's best nominees to the U.S. Courts of Appeals.
The Senate can adopt new rules by a simple majority vote at the start of each two-year session of Congress. (It takes a two-thirds vote during the session.) When the logth Congress convenes on January 3, 2005, the Senate should adopt a new rule permitting three-fifths of Senators present to close a debate. That would give the majority a fair chance to confirm the president's nominees.
The U.S. Senate could take a more constructive approach in the confirmation hearings. A nominee should first be asked whether he is a judicial supremacist, whether he believes that the Constitution is whatever the Supreme Court says it is, and whether he believes in an evolving Constitution. If so, then the nominee should be asked about his politics, life experiences, and philosophy so that the Senate and the public can try to determine into what sort of document he thinks the Constitution should evolve.
If court nominations seem too political already, it is largely because everyone knows that judicial supremacists make political decisions. 
II.  LEGISLATE EXCEPTIONS TO COURT JURISDICTION
Congress has the duty to curb the power of the judicial supremacists. We don't trust the federal courts or the
Supreme Court to tamper with the definition of marriage by applying supremacist notions of "emerging awareness" or "evolving paradigm." We don't trust the courts to tamper with our right to acknowledge God, whether in the Pledge of Allegiance, the Ten Commandments, our national motto, or voluntary prayer. Therefore, Congress should remove power from all federal courts to impose the rule of judges over our rights of self-government.
Our great Constitution has within it the checks and balances we need to deal with the problem of judicial supremacy. This includes the ability of Congress to limit the jurisdiction (judicial power) of all federal courts.
Article I, Section 8 of the Constitution states: "The Congress shall have power ... to constitute tribunals inferior to the Supreme Court." Article III, Section i states: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
These two sections mean that all federal courts except the Supreme Court were created by Congress, which defined their powers and prescribed what kind of cases they can hear. Whatever Congress created it can uncre-ate, abolish, limit or regulate.
Article III, Section 2 states: "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." 
This section means that Congress can make "exceptions" to the types of cases that the Supreme Court can decide. This is the most important way that Congress can and should bring an end to the reign of judicial supremacy.
There is nothing new or wrong about Congress telling the federal courts what cases they can and cannot hear. Limiting court jurisdiction is a tool the liberals have used many times. In 2002, Congress passed a law (at Senator Tom Daschle's urging) to prohibit all federal courts from hearing cases about brush clearing in South Dakota. Surely other issues are as important as brush fires in South Dakota.
The Record of Congressional Action
A long historical record conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have accepted it.
In Turner v. Bank of North America (1799), Justice Chase commented: "The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the Constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal."
Even Chief Justice John Marshall, the judicial supremacists' hero, made similar assertions. For example, in Ex parte Bollman (1807), Marshall said that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."
The early decisions of the Supreme Court were sprinkled with the assumption that the power of Congress to create inferior federal courts necessarily implied, as stated in U.S. v. Hudson & Goodwin (1812), "the power to limit jurisdiction of those Courts to particular objects." The Court stated, "All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them."
The Supreme Court held unanimously in Sheldon v. Sill (1850) that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting Rights Act of 1965, in which Congress required covered states that wished to be relieved of coverage to bring their actions in the District Court of the District of Columbia.
The Supreme Court broadly upheld Congress's constitutional power to define the limitations of the Supreme Court "with such Exceptions, and under such Regulations as the Congress shall make" in Exparte McCardle (1869). Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction. "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words."
McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later cases. For example, in 1948 Justice Frankfurter in National Mutual Insurance Co. v. Tidewater Transfer Co. (dissenting) commented: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is subjudice [already before the court]."
In The Francis Wright (1882), the Court said:
   While the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to what extent they shall be exercised, are, and
always have been, proper subjects of legislative control. . . . Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.
Numerous restrictions on the exercise of appellate jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in criminal cases except upon a certification of divided circuit courts.
In the 19305, liberals in Congress thought the federal courts were too pro-business to fairly handle cases involving labor strikes. In 1932 Congress passed the Norris-LaGuardia Act removing jurisdiction in this field from the federal courts, and the Supreme Court had no difficulty in upholding it in Laufv. E. G. Shinner & Co. (1938). The Supreme Court declared, "There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States."
Liberals followed the same procedure when they passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates. These laws worked well and no one has suggested they be repealed.
Another celebrated example was the Emergency Price Control Act of 1942, in which Congress removed from
federal courts the jurisdiction to consider the validity of any price-control regulation. In the test case upholding this law, Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of "withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good."
After the Supreme Court ruled in Tennessee Coal v. Muscoda (1944) that employers had to pay retroactive wages for coal miners' underground travel to and from their work station, Congress passed the Portal-to-Portal Act of 1947 prohibiting any court from enforcing such liability.
Even one of the leading judicial supremacists, Justice William Brennan, conceded Congress's constitutional power to limit the jurisdiction of the federal courts. In 1982 he wrote for the Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.: "Of course, virtually all matters that might be heard in Art. in courts could also be left by Congress to state courts ... [and] the principle of separation of powers is not threatened by leaving the adjudication of federal disputes to such judges."
In 1999 the Supreme Court upheld Congress's power to restrict the jurisdiction of the federal courts to interfere in certain immigration disputes (Reno v. American-Arab Anti-Discrimination Committee). In 2003 the Supreme Court upheld a 1996 law signed by President Clinton that gave exclusive authority to the U.S. Attorney General to deport certain illegal aliens and specified that federal courts have no jurisdiction to review such removal orders (Hatami v. Ridge).
Another statute that prohibits judicial review is the Medicare law, on which nearly everyone over age sixty-five relies for health care. Congress mandated that "there shall be no administrative or judicial review" of administrative decisions about many aspects of the Medicare payment system. When someone sued in federal court anyway, the court dismissed the lawsuit based on this prohibition of judicial review. (American Society of Dermatology v. Shalala, 1996)
Keep Judges'Hands OffofDOMA
In 1996, Congress passed the Defense of Marriage Act (DOMA) by large majorities: 342 to 67 in the House, 85 to 14 in the Senate. This law was so popular that it was even signed by President Bill Clinton. DOMA does two things:
- In everything that is touched by federal law or regulation, "marriage means only a legal union between one man and one woman as husband and wife," and "spouse refers only to a person of the opposite sex who is a husband or a wife."
- Congress uses its power under the "full faith and credit" provision of the Constitution to prescribe that no state can be required to recognize another state's adoption of same-sex marriage.
In compliance with the federal DOMA, thirty-nine states have enacted their own state DOMA. Four states have put DOMA in their state constitutions. Nearly two dozen more states are considering putting a prohibition against same-sex marriage in their state constitutions.
The federal DOMA is a splendid, well-written law. But pressure groups are threatening to file suit to knock out this law, and lawyers are predicting that activist judges will declare it unconstitutional.
Congress should protect DOMA by passing a law to prevent all federal courts (including the Supreme Court) from hearing any challenge to DOMA, and to block any federal challenge to a state DOMA. Protecting DOMA will help ensure that marriage law conforms to what the American people want.
It is completely constitutional for Congress to take away from all federal courts the power to declare federal and state DOMAS unconstitutional - and it's Congress's constitutional duty to protect the American people from judicial supremacists who might commit such an outrage. Don't let anybody tell you that Congress can't tell the federal courts what cases they can and cannot hear. Just read the Constitution.
Legislation to limit federal court jurisdiction will not stop Massachusetts from issuing same-sex marriage licenses. But it would mean that the federal government would not have to recognize those licenses and that the federal courts could not be used to force other states to recognize them. Massachusetts may yet figure out a way to deal with its own judicial supremacists.
The executive branch also has the responsibility to defend marriage by using DOMA. The President should do his constitutional duty to "take care that the laws be faithfully executed."
The General Accounting Office compiled a fifty-eight-page list of 1,049 federal rights and responsibilities that are contingent on DOMA'S definition of marriage. The GAO report states that the man-woman marital relationship is "integral" to the Social Security system and "pervasive" to our system of taxation. The widespread social and familial consequences of DOMA also impact on adoption, child custody, veterans benefits, and the tax-free inheritance of a spouse's estate.
The Internal Revenue Code has provided since 1948 that "a husband and wife may make a single return jointly of income taxes." If the highest court of a state declares that marriage is no longer a union of "husband" and "wife," then whatever unions are performed in that state should not be recognized as a marriage by federal law and should not be entitled to file a joint federal income tax return.
Gay advocates want same-sex couples to claim the 1,049 benefits of marriage under federal law, but what should happen instead is that, once a state's definition of marriage no longer means husband and wife, then no one married in that state (including opposite-sex couples) should be recognized as married by federal law. Opposite-sex couples that want to be recognized as married by the federal government so they can file joint income tax returns should travel to another state to pronounce their marriage vows.
The President should order the bureaucracy to establish procedures to handle the paperwork. Taxpayers are quite used to having to provide the Social Security number of their children to prove their existence in order to claim income tax exemptions. The Internal Revenue Service should prepare income tax forms that require joint returns to show the date and place of marriage, enabling it to identify and reject unions from states, cities, counties, and foreign countries whose local marriage laws do not comply with the federal definition of marriage.
The President should instruct all federal agencies to prepare for energetic compliance with the more than a thousand federal regulations impacted by DOMA.
Keep Judges' Hands Off Acknowledgment of God
Congress should pass a law to clarify that the federal courts, including the Supreme Court, do not have jurisdiction over whether an acknowledgment of God by public officials violates the Establishment Clause of the First Amendment. Nothing in the Constitution confers on the federal courts, including the Supreme Court, the final and exclusive authority to decide how the other branches, or how each governmental entity of the fifty states, may acknowledge God. Under the constitutional doctrine of separation of powers, each branch of the federal government has the authority to determine how it will acknowledge God.
This remedy is needed because dozens of cases have been filed all over the country asking federal judges to declare the recitation in public schools of the Pledge of Allegiance unconstitutional because it includes the words "under God," or demanding that the display of the Ten Commandments in public buildings or parks be held unconstitutional.
The federal courts should have no authority to hear such cases or to render such a decision. These lawsuits are initiated under the pretense that any mention of God violates the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - "The acknowledgment of God in the Pledge of Allegiance and the Ten Commandments is not an "establishment of religion." The Constitution delegates "all legislative powers" to the Congress (none to the courts), and Congress has never passed a law banning the acknowledgment of God.
So how could a handful of activist judges in the last couple of years presume to ban the acknowledgment of God from documents, monuments, songs, expressions and practices that have been part of our culture throughout our history? The answer is that the federal courts, year by year, decision by decision, have been asserting judicial supremacy over the other branches of government - and Congress and the American people have been letting them get by with this unconstitutional grab for power.
The federal courts should have no jurisdiction to consider cases involving the acknowledgment of God. Congress should forbid federal courts from censoring public acknowledgments of God, adding this issue to other "exceptions" and "regulations" to federal court jurisdiction.
That is the way the framers of our Constitution intended that Congress would, as Alexander Hamilton wrote in Federalist 78, keep the judiciary as the "least powerful" branch of government and see to it that judges "should be bound down by strict rules and precedents, which serve to define and point out their duty."
III.  STOP FOREIGN INTERFERENCE
Congress should prohibit federal courts from relying on foreign laws, administrative rules, or court decisions. Americans have been shocked to learn that six current U.S. Supreme Court justices have cited foreign sources, even though it is self-evident that U.S. judges should be bound by the U.S. Constitution and U.S. laws, not foreign ones.
One of the justifications for the American Revolution listed in the Declaration of Independence was that King George in had "combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws." It is unacceptable that six current Supreme Court justices have gone on record as saying that U.S. court decisions should be influenced by foreign sources.
In a speech to the U.S. Judicial Conference on March 16,2004, House Judiciary Committee Chairman F.James Sensenbrenner Jr. admonished the justices that deference to foreign sources is out of order:
Article vi of the Constitution unambiguously states that the Constitution and federal statutes are the supreme law of the land. America's sovereignty may be imperiled by a jurisprudence predicated upon laws and judicial decisions unfounded in our Constitution and unincorporated by the Congress. Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our Founders, and threatens to undermine the legitimacy of the American judicial process.
IV.  SAVE SELF-GOVERNMENT
Congress should take away the power of a single federal judge to issue an injunction to overturn a referendum and prevent enforcement of the voters' wishes during the years that a case winds its way through the court system. It is an offense to the rule of law that, again and again, a single federal judge has nullified an initiative passed by a majority of the voters in a statewide referendum.
A single Jimmy Carter-appointed federal judge (Mariana Pfaelzer) nullified California's Proposition 187, which would have prohibited giving taxpayer benefits to illegal aliens. Proposition 187, which passed in 1994 receiving five million votes, was nullified by only one federal judge and kept permanently inoperative (League of United Latin American Citizens v. Wilson).
A single federal judge nullified Proposition 209, the California Civil Rights Initiative to end state racial preferences, which overwhelmingly passed in 1996. It is nonsense to call this measure unconstitutional when its text reads as if it were copied from the 1964 Civil Rights Act. Judge Thelton Henderson, the Carter appointee and a former ACLU board member and civil rights litigator who rendered this decision, not only used his judicial power to overturn the wishes of the majority of Californians, but in a highly suspect procedure, grabbed jurisdiction over this case from another judge to whom it had been assigned. Fortunately, the Ninth Circuit U.S. Court of Appeals ruled that Proposition 209 is constitutional (Coalition for Economic Equity v. Wilson) and declared, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."
Indeed it does. We wish the Ninth Circuit would always remember that principle.
In a statewide referendum in 1991, the voters in the state of Washington reaffirmed a state statute that prohibited anyone from "knowingly causing or aiding other persons in ending their lives." In Compassion in Dying v. Washington (1996), one federal district court judge (Barbara J. Rothstein) declared unconstitutional the people's vote against physician-assisted suicide. The full Ninth Circuit U.S. Court of Appeals, en bane, agreed, tried to invent a new constitutional right to assisted suicide, and smeared those who oppose it as "cruel."
Fortunately, the Supreme Court reversed that cruel decision (Washington v. Glucksberg, 1997). Unfortunately, that's not the end of the story.
Five of the justices in Glucksberg indicated that if the facts are slightly different in a future case, they might use substantive due process to find a right to assisted suicide. In a speech on April 27, 2004, Justice Scalia speculated that the Court may soon discover a right to assisted suicide between the lines of the text of the Constitution. "We're not ready to announce that right," he said, "check back with us."
Congress should by law prevent one federal judge from overturning the vote of the people in a statewide referendum. One way to do this would be to legislate that a popular initiative passed by the voters can be struck down only by a three-judge panel.
V.  STOP JUDICIAL TAXATION
Congress should prohibit the federal courts from ordering any government entity at any level to raise taxes under any circumstance. One of the Constitution's clearest directives is "All Bills for raising Revenue shall originate in the House of Representatives."
State court judges must also be required to recognize that under the separation of powers, raising taxes is exclusively a legislative function.
Congress should pass legislation to prohibit the spending of federal money to enforce obnoxious decisions handed down by judicial supremacists. The House of Representatives did exactly this when it passed two amendments in 2003 sponsored by Rep. John Hostet-tler. One amendment, which passed 307 to 119, prohibits spending federal money to enforce the Ninth Circuit's anti-Pledge of Allegiance decision, and the second, adopted 260 to 161, does likewise for the Eleventh Circuit ruling that the Ten Commandments may not be posted in the Alabama state courthouse.
Congress controls the money, and Congress should use its money power to limit the mischief of the judicial supremacists.
VI.  END THE POWER OF A SINGLE JUDGE
When a law has been passed by Congress and signed by the President, would it not make sense to require at least a two-thirds majority of the Court to declare such a law unconstitutional? Should we permit one justice in a 5 to 4 decision to overrule both other branches of government? Cases in which the Supreme Court was split on a decision that declared a provision of a federal or state law unconstitutional are among the most controversial and historic cases ever decided: legal tender, slaughterhouse, income tax, child labor, minimum wage, the gold clause, congressional term limits, mandatory abortion funding, partial-birth abortion, school vouchers, and racial preferences. On such great issues where our leaders and the American people have different views, it does not make sense that one justice in a 5 to 4 decision should be able to void a law for the entire nation.
On the fifth anniversary of Justice Harry Blackmun's death, in March 2004, the Library of Congress made available to the public 530,000 pages of his personal papers. The documents reveal the power and influence of a single justice in legislating public policies of tremendous significance.
Blackmun's notes reveal that the Supreme Court was on the verge of rejecting by 5 to 4 the argument that prayer at public school graduations violates the First Amendment when, suddenly, Justice Anthony Kennedy changed his mind. Kennedy then wrote the 5 to 4 decision in Lee v. Weisman (1992) which banned graduation prayer because "peer pressure" to attend graduation might induce students to listen to a prayer they didn't like.
Lee v. Weisman became a major precedent in the cases to ban the words "under God" from the Pledge of Allegiance. Without the Kennedy switch, we probably wouldn't have to worry about the Pledge of Allegiance cases, and we might even be closer to a return to voluntary school prayer.
Why did Kennedy switch? Who influenced him at the last minute? Should such important issues of public policy be made by a single judge whose opinion shifts back and forth, and who may have been unduly influenced by pressures unknown?
Kennedy played the same role in Planned Parenthood v. Casey, another landmark ruling in 1992. Blackmun's notes reveal that Kennedy was ready to be part of a 5 to 4 decision overturning Roe v. Wade. Suddenly, Kennedy sent a handwritten note to Blackmun (the author of Roe v. Wade) promising "welcome news." Kennedy switched sides and joined the unexpected 5 to 4 ruling in Planned Parenthood v. Casey to uphold Roe v. Wade.
It is offensively undemocratic for such momentous matters that affect the entire nation to be subject to the personal whims of a single justice. It's bad enough that such rulings are decided by just one vote. It's an insult to our right of self-government that one man is so fickle, and that judicial secrecy keeps us from exposing the influences that precipitated his last-minute switch.
We must reject the notion that the Constitution is whatever the Supreme Court says it is - that, in effect, the Constitution is what one justice says it is, one justice who changes his mind daily.
The judicial supremacists are just as dangerous in the lower federal courts and in many state courts. The second Florida supreme court decision throwing out the 2000 presidential election count was 4 to 3, and the Massachusetts court decision in Goodridge legalizing same-sex marriage was also 4 to 3. As one Massachusetts legislator to said, "Abraham Lincoln said government of the people, by the people, for the people, but the Massachusetts court has given us government by four people."
It is absurd that a one-judge margin in one state might get away with the atrocity of overturning traditional marriage for 290,000,000 Americans.
VII.  REMOVAL IS AN OPTION
Congress should let it be known that it takes its impeachment power seriously and intends to use it. The Constitution's Article VI states that "all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution," and Article III further specifies that all federal judges, including Supreme Court justices, "shall hold their offices during good behavior."
Making outrageous rulings that have no basis in the Constitution should be grounds for impeachment. Claiming that an Imperial Judiciary can make our laws rather than elected representatives should be grounds for impeachment. Citing foreign courts as a basis for overturning U.S. laws should be grounds for impeachment.
Even the threat of impeachment is useful. When federal district judge Harold Baer allowed a confessed drug dealer to suppress evidence of her crime, Senate Majority Leader Bob Dole called for his impeachment and President Clinton's spokesman issued what was understood to be a veiled warning. Baer quickly reversed himself.
Impeachment should be a particularly viable remedy against judicial supremacists on state courts. The Massachusetts judges who ruled for same-sex marriage should be prime candidates for impeachment and removal.
Massachusetts even has a separate procedure to fire a sitting judge by a simple majority vote of the legislature.
Article 98 of the Massachusetts Constitution provides that "the governor, with the consent of the council, may remove them [all judicial officers] upon the address of both houses of the legislature ..." Why hasn't the Massachusetts legislature acted? It is primarily Massachusetts' duty to remedy the outrage of its out-of-control judges.
The problem of state court supremacists can also be dealt with by defeating them for reelection or retention, since they do not have lifetime appointments. The voters sent a powerful message in 1986 when California Chief Justice Rose Bird and two like-minded justices were defeated and removed for imposing their personal political views.
Public indignation can sometimes achieve the same result. In 2004, a Sarasota, Florida, circuit court judge decided to retire rather than seek reelection after he was criticized on national television for allowing a criminal to remain on probation, despite violating its conditions, who was then charged with kidnapping and slaying an eleven-year-old girl.
VIII.  STOP JUDICIAL MICROMANAGEMENT
Congress should prohibit federal judges from trying to micromanage public schools, prisons, or mental hospitals. The courts have no competence in these tasks, and the pretense that they do results in much mischief. For example, in Missouri v. Jenkins, the judicial supremacists ordered "a wholesale shift of authority over day-to-day school operations from parents, teachers, and elected officials to an unaccountable district judge whose province is law, not education."The mountain of litigation and costs that resulted from that decision achieved nothing.
Courts make no attempt to study the effects of their rulings, and sometimes the solution is worse than the problem. The Kennedy-Rehnquist-O'Connor-Scalia concurring opinion in Missouri v. Jenkins pointed out that the decision "demonstrated little concern for the fiscal consequences of the remedy that it helped design."
Unfortunately, the judicial supremacists did not learn a lasting lesson from Missouri v. Jenkins. In November 2002, the Arkansas high court ordered changes in the state's $1.8 billion system for public education and set January i, 2004, as the deadline for compliance. When the legislature failed to obey the court's orders, the Arkansas supreme court appointed its own representative to take charge of the school system.
The judicial supremacists in Massachusetts continue to try to run the public school system. On April 26, 2004, a Massachusetts superior court judge issued a three-hundred-page advisory ruling to dictate the future of education in that state. The ruling gave the school system a "definite but limited period of time" to comply and promised that the courts would retain jurisdiction to make sure its orders are obeyed.
On May, 2004, a state district judge ordered Kansas to close all its public schools until the state obeys the court's demand to change the way the taxpayers' money is spent on education. This was three days after the state legislature had adjourned for the year.
The means by which federal district judges micro-manage public agencies such as schools and prisons is called the consent decree. In a consent decree, the representatives of the parties to a lawsuit "consent" to a "decree" in which the governance of the agency is vested in a federal court for an indefinite period of time. Some consent decrees have lasted twenty-five years or more with no end in sight - twenty-five years in which an important agency of state or local government has been taken away from legislators, voters and taxpayers, and controlled exclusively by one unelected federal district judge with life tenure.
Congress should end the racket of consent decrees by adding this provision to federal law: The equitable power of the district courts over government agencies is hereby limited to remedies that can be performed within one year. No injunction or decree or other remedy shall be entered against a governmental entity unless by its terms it can be performed within one year from date of entry.
Judges have large caseloads and are constantly complaining about being overworked. The day-to-day management of schools, prisons and mental hospitals should not be on their agenda.
IX.  CUT OFF ATTORNEY'S FEES
Congress should pass a law to prevent the collection of attorney's fees by special-interest organizations that litigate against the acknowledgment of God or marriage. It is intolerable that the ACLU and other left-wing groups are able to use these lawsuits as a source of revenue. Many of the mischievous ACLU lawsuits are actually funded by the taxpayers because a federal law awards attorney's fees if they win the case. The fees collected can be several times the actual cost of the litigation.
The organizations that sued to remove the Ten Commandments from the Alabama State Judicial Building (ACLU, Southern Poverty Law Center, and Americans United for Separation of Church and State) collected $540,000 in attorney's fees and expenses in 2004 from Alabama taxpayers. It is unconscionable that the Alabama taxpayers were forced to pay for the anti-Ten Commandments lawyers.
Kentucky taxpayers have handed over $121,500 to pay the ACLU for its action against the Ten Commandments display outside its state capitol, and taxpayers in a county in Tennessee had to pay the ACLU $50,000 for the same "offense." Other Ten Commandments cases are pending in Alaska, Minnesota, Nebraska, Colorado, North Carolina and Iowa.
The ACLU profited enormously, collecting $790,000 in legal fees plus $160,000 in court costs, as a result of its suit to deny the Boy Scouts of America the use of San Diego's Balboa Park for a summer camp, a city facility the Scouts had used since 1915. The ACLU argued that the Boy Scouts must be designated a "religious organization" because it refuses to accept homosexual scoutmasters, and because the Scouts use an oath "to do my duty to God and my country."
Congress should end this racket. Most lawsuits do not award attorney's fees to the winner, and the law should not give a financial incentive to those suing to stop our acknowledgment of God. Federal law should never have permitted an award of attorney's fees in those cases. The attorneys who sued to remove the Ten Commandments monument in Alabama were not lawyers in private practice who risked their own time and money to help a worthy but penniless plaintiff; they were salaried lawyers employed by wealthy organizations that use such lawsuits for fundraising.
When small units of government receive a demand from the ACLU to remove their Ten Commandments monument, which may have stood in the city park for a half century without annoying anyone, many city fathers feel compelled to knuckle under because they lack the funds to fight the lawsuit. In northern Minnesota, the Duluth city council voted 5 to 4 to acquiesce in the ACLU'S demand to remove a Ten Commandments monument from public property. Council members voted that way only because the city couldn't afford to pay the legal costs of defending the monument, in addition to the ACLU'S fees if they lost.
More than four thousand Ten Commandment monuments are displayed in cities nationwide. Many were donated by the Fraternal Order of Eagles during the 19505. Unless Congress acts, those four thousand Ten Commandments monuments could become four thousand pots of gold for the ACLU and other anti-God groups.
The same racket is going on in connection with the Pledge of Allegiance cases. Circle School v. Phillips (2003) is one example. There are sixteen thousand public school districts in the United States that could become targets of lawsuits to ban the Pledge of Allegiance.
X.  THE POWER OF CONGRESSIONAL INVESTIGATIONS
The Senate and House Judiciary Committees should hold extensive hearings on various proposals to stop the usurpation of power by the federal courts. Congress's investigative function is one of its most important duties, and now is the time to use it. Many experts and scholars have proposed various remedies to curb judicial usurpation, and Congressional hearings are the proper forum to air them.
The increasingly contentious battles over confirming nominations of federal judges are a byproduct of judicial supremacy. Before the present era of judicial oligarchy, it made sense to ask only about a nominee's qualifications. Now that judges have assumed political power and make decisions based on their personal political opinions, it makes sense for the confirmation process to ascertain what are those opinions.
We must educate the public. Here is one striking example of how public discussion outside of the courtroom can correct the judges and lawyers who are teaching error.
From about 1950 to about 1990, law professors, prosecutors and judges adopted the erroneous view that the Second Amendment had nothing to do with an individual's right to own a gun. They tried to reinterpret the text of the Second Amendment, and they completely ignored its plain meaning and historical context.
Then, an assortment of gun rights advocates, working entirely outside the legal profession, actively promoted the truth about the historical meaning of the Second Amendment. At first, the legal community scoffed at these people by pretending they were ignorant "gun nuts." But eventually, the weight of logic and historical evidence became overwhelming.
The view that the Second Amendment guarantees the right of individuals to own guns has now been adopted by the U.S. Justice Department, the Fifth Circuit U.S.
Court of Appeals, and a leading treatise on constitutional law. The Fifth Circuit decision, U.S. v. Emerson (2001), concluded that "It appears clear that 'the people,' as used in the Constitution, including the Second Amendment, refers to individual Americans."
Quoting what he called the "unanimous understanding of the Founding Fathers," Attorney General John Ashcroft stated on May 17, 2001, "In light of this vast body of evidence, I believe it is clear that the Constitution protects the private ownership of firearms for lawful purposes."
Congressional investigations into all the constitutional issues discussed in this book would take us far toward remedying the impudence of the judicial supremacists.
THE TIME FOR ACTION IS NOW
The new ruling class of judicial supremacists has effectively changed the definition of "the supreme law of the land" from "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof" to whatever a federal judge decides this week. The supremacists have replaced our three equal branches of the federal government with the Imperial Judiciary.
The judges have convinced themselves that they are infallible and should have the final say over our nation's controversial political and social issues. The judges use their assumed powers to enforce their liberal agenda on us, and they preempt criticism by repeatedly proclaiming the false court-invented notions that their rulings are the law of the land and that the Constitution is whatever the Supreme Court says it is. They are locking in what Thomas Jefferson called "the despotism of an oligarchy" of judges who have become "the ultimate arbiters of all constitutional questions."
Article IV, Section 4 of the Constitution guarantees "to every State in this union a Republican Form of Government." As long as we allow judges to legislate public policy, we do not have republican self-government. The American people and their elected representatives allowed this to happen over the last fifty years, exactly as Thomas Jefferson warned: "The germ of dissolution of our federal government is in the constitution of the federal judiciary; . . . working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped . . ."
The judicial supremacists have no regard for the processes of self-government. According to Robert Bork, the judges disdain the American people as "motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like," and the judges see their mission as remaking our culture in their own liberal image.
The current situation is intolerable. We call on Congress to use its constitutional authority to restore the balance of power among the three branches. The accusation will be made that withdrawing jurisdiction from the federal courts is an attack on their power and indicates that we don't trust their decisions. That's exactly right; we don't, especially after Casey, Romer, and Lawrence, and the lower federal court decisions on the Pledge of Allegiance and the Ten Commandments, and state court decisions on marriage and elections. The judicial supremacists are out of control.
Legislatures, presidents, and governors should treat court decisions as binding only on the parties to the case, not on parties who were not represented in the case and who may have dissimilar or even contrary interests.
Despite public opinion polls showing overwhelming support for acknowledging God in the Pledge of Allegiance and other American traditions, supremacist doctrines continue to plague us without any relief in sight. The flawed Lemon v. Kurtzman test for the acknowledgment of God continues to encourage activist judges to hand down their own interpretations of what that test means. In 2004, the Supreme Court justices wrestled with the VMI grace-before-supper case (Bunting v. Mel/en) during eight private weekly conferences before deciding not to decide the case, allowing the Fourth Circuit anti-God ruling to stand.
The ACLU is continuing its revenue-producing anti-God strategy in state after state. Many of the lawsuits are settled in the ACLU'S favor and against the wishes of the people because the local units of government can't justify the costs of litigation and the risk of payment of the ACLU lawyers' fees. The settlements indicate tacit acquiescence in the false notion that the First Amendment prohibits the mention of God by any public official or in any public place.
In May 2004 under pressure from the ACLU, the city of Redlands, California, "voluntarily" changed its forty-year-old city seal to remove a cross and replace it with a tree. "We cannot afford to engage in a fight that we will lose," the mayor said. Encouraged by the Redlands capitulation, the ACLU is threatening to sue Los Angeles, California, because its official seal has a tiny cross on it, along with many other symbols. The most prominent feature in the seal is Pomona, the goddess of gardens and fruit trees, but the ACLU has no objections to her.
Unless the American public makes its outrage about judicial supremacists loud and clear, the Supreme Court may believe it can continue to ignore the public. In the 19505 and 19605, the American people and distinguished attorneys expressed public indignation about the Warren Court's anti-God, pro-criminal, pro-pornography, and pro-Communist decisions. But Congress failed to take specific action, and later judges continued to expand on the powers grabbed by the Warren Court.
Congress has the duty to save us from judicial supremacists and from the harassment that is carried on by pressure groups litigating on the basis of supremacists' court rulings. Congress should act now. The American people must demand that Congress use its full constitutional powers to protect America from judicial usurpation. This goal should take priority over everything else because the federal courts pose the number-one threat to our democratic process.
On March 8, 2004, in Dallas, President Bush delivered the challenge: "We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order."
If we truly believe in self-government, ordinary Americans must take a major role in reforming the Imperial Judiciary. Private citizens must take an interest in court decisions, discuss them, comment on them, and ask television and radio talk shows to include them in their programming. Ordinary Americans must require every candidate for Congress to commit to restoring self-government by legislating historical limits to the federal judiciary's powers.
We must ask ourselves, what kind of a country do we want America to be? Do we want a country where "we the people" are sovereign, where we are governed by legislators we elect, where we can continue to raise our children in a land where the government respects our religious, cultural, and social traditions and heritage? Or will we be ruled by an unelected cadre of judges who are trampling on our most precious traditions and customs? The moral crisis our nation suffers from today is largely the result of court decisions that overturned longstanding laws and customs designed to protect morality, marriage, family integrity, patriotism, and safety from criminals and pornographers.
All those who love liberty must dare to oppose judicial supremacy and its advocates. In the words of the Declaration of Independence, we must "disavow these Usurpations." The longer we delay in taking up the challenge, the harder it will be to achieve our goal. The truth of what has been done to us by judicial supremacists appears clearer every day. America faces a crisis of self-government.
Every session of the Supreme Court opens with the announcement: "God save the United States and this Honorable Court." The American people are crying out: "God save the United States from this Honorable Court."
Acknowledgment
Phyllis Schlafly acknowledges the assistance of her son Roger, who contributed his skill of logic to the analysis of the complex court decisions in this book and their relation to the unconstitutional doctrine of judicial supremacy. Roger has a BSE from Princeton University, a PHD in mathematics from the University of California Berkeley, and a license to practice patent law before the United States Patent and Trademark Office.
Table of Cases
ACLU Nebraska Foundation v. City of Plattsmouth, No. 02-2444, 2004 U.S. App. LEXIS 6636 (8th Cir. Apr. 6, 2004), 28
American Society of Dermatology v. Shalala, 962 F. Supp. 141 (D.D.C. 1996), 123
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), 63
Atkins v. Virginia, 536 U.S. 304 (2002), 51, 78-79
Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993), 36
Baker v. Carr, 369 U.S. 186 (1962), 82
BedRoc Limited v. United States, 124 S. Ct. 1587 (2004), 52
Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), 159
A Book Named "John Cleland's Memoirs of a Woman of Pleasure"
v. Massachusetts, 383 U.S. 413 (1966), 58-59,165 Bowers v. Hardwick, 478 U.S. 186 (1986), 42,48 Brewer v. Williams, 430 U.S. 387 (1977), 77-78 Brown v. Board of Education, 347 U.S. 483 (1954) and 349 U.S.
294 (1955), no, m Bunting v. Mellen, 327 F.3d 355 (4th Cir. 2003), cert, denied, No.
03-863,2004 U.S. LEXIS 3053 (Apr. 26,2004), 32,146,177 Bush v. Gore, 531 U.S. 98 (2000), 84-87
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 58
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), 33
Circle School v. Phillips, 270 F. Supp. 2d 616 (E.D. Pa. 2003), 20,
142,161 Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir.
1997), 131 Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992), aff'd,
991 F.2d 888 (1st Cir. 1993), 72 Colegrove v. Green, 328 U.S. 549 (1946), 82 Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996),
revdsub nom. Washington v. Glucksberg, 521 U.S. 702 (1997), 131 Cooper v. Aaron, 358 U.S. 1 (1958), 109-11,174-75
Doe v. Bolton, 410 U.S. 179 (1973), 66 Dred Scott v. Sanford, 60 U.S. 393 (1857), 10,100-102,103,175
Engel v. Vitale, 370 U.S. 421 (1962), 29-31 Escobedo v. State of Illinois, 378 U.S. 478 (1964), 76 Everson v. Board of Education, 330 U.S. 1 (1947), 162 Ex parte Bollman, 8 U.S. 75 (1807), 119 Ex parte McCardle, 74 U.S. 506 (1869), 120
Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir.
1996), rev'd, 524 U.S. 569 (1998), 62 The Francis Wright, 105 U.S. 381 (1881), 120-21 Frontiero v. Richardson, 411 U.S. 677 (1973), 68-69 Furman v. Georgia, 408 U.S. 238 (1972), 78,169
General Media Communications v. Perry, 952 F. Supp. 1072 (S.D.N.Y.), rev'd, 131 F.3d 273 (2d Cir. 1997), 63
Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002), aff'd, 335 F.3d 1282 (llth Cir. 2003), 26
Goodridge v. Department of Public Health, 440 Mass. 309 (2003), 12,36, 38-39, 41, 44,52,135
Grutter v. Bollinger, 539 U.S. 306 (2003), 50, 73
Guinn v. Legislature of the State, 71 P. 3d 1269 (Nevada 2003), 96
Harris v. McRae, 448 U.S. 297 (1980), 69
Hatami v. Ridge, 270 F. Supp. 2d 763 (E.D. Va. 2003), 123
In re Stanford, 537 U.S. 968 (2002), 79
Jackson v. Denno, 378 U.S. 368 (1964), 104 Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985), aff'd, 807 F.2d 657 (8th Cir. 1986), 92
Knight v. Florida, 528 U.S. 990 (1999), 48
Laufv. E.G. Shinner ScCo., 303 U.S. 323 (1938), 121 Lawrence v. Texas, 539 U.S. 558 (2003), 41, 42, 48, 49, 72,146 League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) and 997 F. Supp. 1244 (C.D. Cal. 1997) and No. 94-7569, etal, 1998 U.S. Dist. LEXIS 3372 (C.D. Cal. Mar. 13,1998), 130
Lee v. Weisman, 505 U.S. 577 (1992), 31,134 Lemon v. Kurtzman, 403 U.S. 602 (1971), 24,146 Lockerty v. Phillips, 319 U.S. 182 (1943), 122
Marbury v. Madison, 5 U.S. 137 (1803), 97-99,100,109-11,172,174
Mazes v. Ohio, 388 U.S. 453 (1967), 61,166
McConnell v. FEC, 124 S. Ct. 619 (2003), 73
McGrain v. Daugherty, 273 U.S. 135 (1927), 106
Miranda v. Arizona, 384 U.S. 436 (1966), 76
Missouri v. Jenkins, 495 U.S. 33 (1990), 86, 92-94,138
Montoy v. Kansas, No. 99-C-1738 (Shawnee Cty. May 11,2004), 139
National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S.
582 (1949), 120 Nevada Department of Human Resources v. Hibbs, 538 U.S. 721
(2003), 70 Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002),
reh'g en bane denied, 328 F.3d 466 (9th Cir. 2003), 13,19, 22-24 Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982), 122
Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S.
74 (1930), 177 Opinions of the Justices to the Senate, 440 Mass. 1201 (2004), 37
Pennsylvania v. Steve Nelson, 350 U.S. 497 (1956), 105,155 Planned Parenthood v. Casey, 505 U.S. 833 (1992), 42, 67, 72, 73,
74,134,135, H6
Plessy v. Ferguson, 163 U.S. 537 (1896), in Powell v. McCormack, 395 U.S. 486 (1969), 83 Public Citizen v. United States Department of Transportation,
316 F.3d 1002 (9th Cir.), cert, granted, 124 S. Ct. 957 (2003), 55
Redrup v. New York, 386 U.S. 767 (1967), 61,166
Reno v. American Arab Anti-Discrimination Committee, 525 U.S.
471 (1999), 122
Reynolds v. Mclnnes, 338 F.3d 1201 (llth Cir. 2003), 161 Reynolds v. Sims, 377 U.S. 533 (1964), 83,104 Roe v. Alabama by 8cThrough Evans, 52 F.3d 300 (llth Cir. 1995), 171 Roe v. Wade, 410 U.S. 113 (1973), 10, n, 42, 65-67, 68,134-35
Romer v. Evans, 517 U.S. 620 (1996), 39-42,146 Roth v. United States, 354 U.S. 476 (1957), 58,59
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000),
31,32
Sheldon v. Sill, 49 U.S. 441 (1850), 119 Southwest Voter Registration Education Project v. Shelley, 344 F.3d
882, rev den bam, 344 F.3d 914 (9th Cir. 2003), 88 Spallone v. United States, 493 U.S. 265 (1990), 172 Stenberg v. Carhart, 530 U.S. 914 (2000), 67, 73 Stone v. Graham, 449 U.S. 39 (1980), 25,31,161
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,
321 U.S. 590 (1944), 122 Turner v. President, Directors and Company, of the Bank of North
America, 4 U.S. 8 (1799), 118-19
United States v. American Library Association, Inc., 539 U.S. 194 (2003), 64
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), 144 United States v. Hudson and Goodwin, 11 U.S. 32 (1812), 119 United States v. Mendoza, No. CR 03-730,2004 U.S. Dist. LEXIS
1449 (C.D. Cal. Jan. 13, 2004), 80 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803
(2000), 63
United States v. Virginia, 518 U.S. 515 (1996), 70 United Steelworkers v. Weber, 443 U.S. 193 (1979), 174 U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), 83-84
Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), 29
Vasquez v. Harris, 503 U.S. 1000 (1992), 169
Vieth v. Jubelirer, 124 S. Ct. 1769 (Apr. 28,2004), 169
Wallace v. Jaffree, 472 U.S. 38 (1985), 31 Wiscart v. Dauchy, 3 U.S. 321 (1796), 176 Worcester v. Georgia, 31 U.S. 515 (1832), 174-75
Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 73 Zorach v. Clausen, 343 U.S. 306 (1952), 34
APPENDIX
Excerpt from the Report of the American Bar Association Committee on Communist Tactics, Strategy, and Objectives, 1957
In the last 15 months the United States Supreme Court has decided 15 cases which directly affect the right of the United States of America to protect itself from Communist subversion:
1.     Communist Party v. Subversive Activities Control Eoard. The Court refused to uphold or pass on the constitutionality of the Subversive Activities Control Act of 1950, and delayed the effectiveness of the Act.
2.    Pennsylvania v. Steve Nelson. The Court held that it was unlawful for Pennsylvania to prosecute a Pennsylvania Communist Party leader under the Pennsylvania Sedition Act, and indicated that the anti sedition laws of 42 States and of Alaska and Hawaii cannot be enforced.
3.    Fourteen California Communists v. United States. The Court reversed two federal courts and ruled that teaching and advocating forcible overthrow of our Government, even "with evil intent," was not punishable under the Smith Act as long as it was "divorced from any effort to instigate action to that end," and ordered five Communist Party leaders freed and new trials for another nine.
4.    Cole v. Young. The Court reversed two federal courts and held that, although the Summary Suspension Act of 1950 gave the Federal Government the right to dismiss employees "in the interest of the national security of the United States," it was not in the interest of the national security to dismiss an employee who contributed funds and services to a not disputed subversive organization, unless that employee was in a "sensitive position."
5.     Service v. Dulles. The Court reversed two federal courts which had refused to set aside the discharge of John Stewart Service by the State Department. The FBI had a recording of a conversation between Service and an editor of the pro Communist magazine Amerasia, in the latter's hotel room in which Service spoke of military plans which were "very secret." Earlier the FBI had found large numbers of secret and confidential State Department documents in the Amerasia office. The lower courts had followed the McCarran amendment which gave the Secretary of State "absolute discretion" to discharge any employee "in the interests of the United States."
6.    Slochower v. Board of Education of New York. The Court reversed the decisions of three New York courts and held it was unconstitutional to automatically discharge a teacher, in accordance with New York law, because he took the Fifth Amendment when asked about Communist activities. On petition for rehearing, the Court admitted that its opinion was in error in stating that Slochower was not aware that his claim of the Fifth Amendment would ipso facto result in his discharge; however, the Court denied rehearing.
7.    Sweezy v. New Hampshire. The Court reversed the New Hampshire Supreme Court and held that the Attorney General of New Hampshire was without authority to question Professor Sweezy, a lecturer at the State University, concerning a lecture and other suspected subversive activities. Questions which the Court said that Sweezy properly refused to answer included:
"Did you advocate Marxism at that time?" and "Do you believe in Communism?"
8.     United States v. Witkovich. The Court decided that, under the Immigration and Nationality Act of 1952, which provides that any alien against whom there is a final order of deportation shall "give information under oath as to his nationality, circumstances, habits, associations and activities and such other information, whether unrelated to the foregoing, as the Attorney General may deem fit and proper," the Attorney General did not have the right to ask Witkovich: "Since the order of deportation was entered in your case on June 25,1953, have you attended any meetings of the Communist Party of the U.S.A.?"
9.    Schware v. Board of Bar Examiners of New Mexico. The Court reversed the decisions of the New Mexico Board of Bar Examiners and of the New Mexico Supreme Court which had said: "We believe one who has knowingly given his loyalties to the Communist Party for six to seven years during a period of responsible adulthood is a person of questionable character." The Supreme Court substituted its judgment for that of New Mexico and ruled that "membership in the Communist Party during the 19305 cannot be said to raise substantial doubts about his present good moral character."
10.  Konigsberg v. State Bar of California. The Court reversed the decisions of the California Committee of Bar Examiners and of the California Supreme Court and held that it was unconstitutional to deny a license to practice law to an applicant who refused to answer this question put by the Bar Committee: "Mr. Konigsberg, are you a Communist?" and a series of similar questions.
11.   Jencks v. United States. The Court reversed two federal courts and held that Jencks, who was convicted of filing a false non Communist affidavit, must be given the contents of all confidential FBI reports which were made by any Government witness in the case even though Jencks "restricted his motions to a request for production of the reports to the trial judge for the judge's inspection and determination whether and to what extent the reports should be made available."
12.   Watkins v. United States. The Court reversed the Federal District court and six judges of the Court of Appeals of the District of Columbia, and held that the House Un-American Activities Committee should not require a witness who admitted, "I freely cooperated with the Communist Party" to name his Communist associates, even though the witness did not invoke the Fifth Amendment. The Court said: "We remain unenlightened as to the subject to which the questions asked petitioner were pertinent."
13.   Raley, Stern and Brown v. Ohio. The Court reversed the Ohio Supreme Court and lower courts and set aside the conviction of three men who had refused to answer questions about Communist activities put to them by the Ohio Un-American Activities Commission.
14.   Flaxner v. United States. The Court reversed two federal courts and set aside the conviction of Flaxner of contempt for refusing to produce records of alleged Communist activities subpoenaed by the Senate Internal Security Subcommittee.
15.   Sacher v. United States. The Court reversed two federal courts and set aside the conviction of Sacher of contempt for refusing to tell the Senate Permanent Investigations Subcommittee whether he was or ever had been a Communist.
The Communist Daily Worker described the effect of these decisions as follows: "The Court delivered a triple barreled attack on (i) the Department of Justice and its Smith Act trials; (2) the free wheeling congressional inquisitions; and (3) the hateful loyalty security program of the Executive. Monday, June 17, is already a historic landmark .. . The curtain is closing on one of our worst periods." 
Notes
1   Judges Rewrite the Constitution
For an early use of the term "living Constitution," see "Mr. Justice Black and the Living Constitution," 76 Harvard Law Review 673 (1963).
Justice William J. Brennan's November 21, 1982 speech was given at Park School, Baltimore, Maryland.
Justice William O. Douglas's "wildcard" metaphor was quoted in "Are We Ready for Truth in Judging?" by W. Forrester, 63 American Bar Association Journal1212 (1977).
The legal doctrine of "substantive due process," and how it has been abused, is concisely explained in The Tempting of America by Robert H. Bork (Free Press, 1990), 31-32.
The word "paradigm" was popularized by a 1962 philosophy book, The Structure of Scientific Revolutions by Thomas Kuhn. The book denied that scientific progress had a rational basis.
Justice Scalia's "a country I do not recognize" is from his dissent in Board of County Commissioners v. Umbehr (1996).
Some scholars draw a distinction between judicial supremacy in a "strong" and a "weak" form. The weak form of judicial supremacy requires that other government actors accept the Court's constitutional interpretations in specific cases. The strong form demands general fidelity to Court constitutional jurisprudence. See the law review article by Brian M. Feldman, "Evaluating Public Endorsement of the Weak and Strong Forms of Judicial Supremacy," 89 Virginia Law Review 979 (2003). This book is concerned with the strong form of judicial supremacy and concludes that it has become entrenched in American government only recently. Feldman argues that the American public has never endorsed the strong form of judicial supremacy, and that such an endorsement would be essential to its legitimacy.
Robert H. Bork gives a useful definition of activist judges: "Activist judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law. The law in question is usually a constitution, perhaps because the language of a constitution tends to be general and, in any event, judicial overreaching is then virtually immune to correction by the legislature or by the public." Coercing Virtue: The Worldwide Rule of Judges by Robert H. Bork (AEI Press, 2003), 8-9.
Robert H. Bork wrote in a January 20,2003, Wall Street Journal op-ed: "The Supreme Court has created a more permissive abortion regime than any state had enacted; prohibited any exercise or symbol of religion touching even remotely upon government; made the death penalty extremely difficult to impose and execute; disabled states from suppressing pornography; catered to the feminist agenda, including outlawing state all-male military schools; created a labyrinth of procedures making criminal prosecutions ever more difficult; used racial classifications to exclude children from their neighborhood public schools; perverted the political process by upholding campaign finance limits that shift political power to incumbents, journalists and labor unions; licensed the advocacy of violence and law violation; and protected as free speech computer-generated child pornography. These decisions are activist, i.e., not plausibly related to the actual Constitution."
2   Judges Censor Acknowledgment of God
A list of the acknowledgments of God in all 50 state constitutions is in: The Ten Commandments & Their Influence on American Law by William J. Federer (Amerisearch, 2003), 52-55.
The Pennsylvania case banning the Pledge where plaintiffs won attorney's fees is Circle School v. Phillips (2003).
No justice signed the Supreme Court's opinion expelling the Ten Commandments from schools in Stone v. Graham, which it issued per curiam. Nor did the Court allow oral argument or even full briefing in the case, as is customary. Instead, the Court simply banned the Ten Commandments outright based merely on a petition for certiorari, reversing the Kentucky judiciary. The Court decried that the posted Ten Commandments might "induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments." Many parents and teachers today wish that students would obey the Commandments and thereby restore order to our schools.
Carter-appointed Judge Myron Thompson's judicial supremacy extends beyond the Ten Commandments case. For eighteen years, he has held control of another case alleging discrimination, inflicting enormous injury and costs on the State of Alabama (Reynolds v. Mclnnes, 2003). The Eleventh Circuit U.S. Court of Appeals reversed one of his decisions in that case and said this of his general handling of that case:
"After 18 years of hearing following hearing, order after order, appeal and more appeals, it is fair to ask what has been accomplished and what remains to be done. The answer, it appears, is not enough has been accomplished and a lot remains to be done. This unwieldy litigation has been afflicting the judicial system and draining huge amounts of public funds from the State of Alabama for much too long. The amounts are staggering. Fifty million dollars in public funds has been spent on attorney's fees alone in the case. An additional $62.5 million has been paid out in consultant and expert costs, bringing the total litigation costs to the State of Alabama to more than $112 million, and that cost is growing at a rate of around $500,000.00 each and every month. The figure does not even include the close to $13 million in contempt fines that the State has paid and continues to pay at the rate of $250,000.00 per month. If the contempt fines are included in the total, the case has cost the taxpayers of the State of Alabama $125 million so far, and the tab is increasing at the rate of $750,000.00 per month."
Despite this rebuke, the case continues to run out of control and causes damages that are far in excess of what was alleged in the first place, and there is no end in sight.
Dean Griswold's speech was published in the Washington Star, March 3,1963.
The Court's hostility to religion started with nonbinding dicta in Everson v. Board of Education (1947). Justice Hugo Black wrote for the majority: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence ..."
The decision itself permitted New Jersey to use tax money for school buses sending children to Catholic and other private schools, and was thus not particularly hostile to religion. But subsequent decisions have cited Everson dicta to argue that government cannot "aid all religions," and therefore must promote secularism. Justices Scalia and Thomas are the only ones on the current Supreme Court who acknowledge the errors in this reasoning. The Constitution was never intended to prohibit state policies that benefit all religions.
3  Judges Redefine Marriage
The rejected federal Equal Rights Amendment (ERA) read: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." During the ten-year battle for ratification, 1972-1982, some ERA advocates denied that ERA would require the granting of marriage licenses to same-sex couples, but most legal scholars admitted this because the plain meaning of the amendment prohibits all discrimination "on account of sex." Senator Sam Ervin Jr., the leading constitutional lawyer in the U.S. Senate until his retirement, stated in Raleigh, NC (Feb. 22,1977): "I don't know but one group of people in the United States the ERA would do any good for. That's homosexuals." Senator Ervin told the U.S. Senate that ERA'S requirement to recognize same-sex marriages illustrates "the radical departures from our present system that the ERA will bring about in our society." He placed in the Congressional Record (Mar. 22,1972) similar testimony by legal authorities Professor Paul Freund of the Harvard Law School and Professor James White of the Michigan Law School. This analysis was also supported in Perkins and Silverstein, "The Legality of Homosexual Marriage," 82 Yale Law Journal 573, 583-589 (Jan. 1973), and in the leading textbook on sex discrimination used in U.S. law schools, Sex Discrimination and the Law by Barbara A. Babcock, Ann Freedman, Eleanor Holmes Norton and Susan Ross (Little Brown, 1975).
UCLA Professor Eugene Volokh's quote is at http://volokh.com/
The text of Colorado's Amendment 2:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation.
Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.
4  Judges Undermine U.S. Sovereignty
Justice Breyer made his statement on ABC News on July 6, 2003.
ABA president Alfred Carlton and Harvard Law School professor Laurence Tribe were quoted by CNSNews.com, July n, 2003.
Justice Ginsburg's criticism of the "Lone Ranger mentality" was made in her speech when she joined Hillary Clinton, Janet Reno, anti-Pledge of Allegiance Judge Stephen Reinhardt, and other legal elite from Democratic administrations to launch a new organization called the American Constitution Society. Its mission is to challenge the Federalist Society (which promotes the nomination of judges who believe in the U.S. Constitution and in America's unique system of federalism). Ginsburg's use of the Lone Ranger metaphor was understood by all to be a slap at both President Bush (for his alleged cowboy approach to foreign policy and his association with the baseball Texas Rangers and his top fundraisers affectionately called Rangers), and also at Chief Justice Rehnquist (who is reputed to have a small figurine of the Lone Ranger in his office). The put-down reference to the Lone Ranger was characteristically feminist, as the feminists disdain everything masculine, and Rangers are very masculine. The meeting was reported by the Associated Press, Aug. 3, 2004, and by MSNBC on Aug. 4, 2004.
Sandra Day O'Connor's remarks about foreign courts were made at the Southern Center for International Studies, Atlanta, October 31, 2003.
The comment about Margaret Marshall is from "A Bold Stroke" by Emily Bazelton, Legal Affairs, May-June 2004.
The European Court of Human Rights decision granting voting rights to prisoners was Hirst v. The United Kingdom (No. 2) issued on March 30, 2004.
For news of the NAFTA Chapter n decisions, see the New York Times, April 19, 2004.
Robert H. Bork's book, Coercing Virtue: The Worldwide Rule of Judges (AEI Press, 2003), is an excellent up-to-date account of how judges worldwide are setting themselves up as the ruling class.
5   Judges Promote Pornography
The decision by Justice Brennan that opened the floodgates to pornography in 1966 was A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts. That was followed by thirty-four per curiam (anonymous) decisions overturning lower court decisions, and another signed decision covering two additional cases. These decisions, all issued between 1966 and 1970, awarded victories to the pornographers.
Per curiam decisions:
1.     Redmond v. United States, 384 U.S. 264 (1966)
2.     Potomac News Co. v. United States, 389 U.S. 47 (1967)
3.     Conner v. Hammond, 389 U.S. 48 (1967)
4.     Central Magazine Sales, Ltd. v. UnitedStates,389 U.S. 50 (1967)
5.     Chance v. California, 389 U.S. 89 (1967)
6.     Keney v. New York, 388 U.S. 440 (1967)
7.     Friedman v. New York, 388 U.S. 441 (1967)
8.     Ratner v. California, 388 U.S. 442 (1967)
9.     Cobert v. New York, 388 U.S. 443 (1967)
10.   Sheperd v. New York, 388 U.S. 444 (1967)
11.   Avansino v. New York, 388 U.S. 446 (1967)
12.   Aday v. United States, 388 U.S. 447 (1967)
13.    Corinth Publications, Inc. v. Wesberry, 388 U.S. 448 (1967)
14.   Rosenbloom v. Virginia, 388 U.S. 450 (1967)
15.   A Quantity of Copies of Books v. Kansas, 388 U.S. 452 (1967)
16.   Schackman v. California, 388 U.S. 454 (1967)
17.   Books, Inc. v. United States, 388 U.S. 449 (1967)
18.   Mazes v. Ohio, 388 U.S. 453 (1967)
19-21. Redrup v. New York, 386 U.S. 767 (1967) (three cases)
22.   Felton v. Pensacola, 390 U.S. 340 (1968)
23.   Rabeck v. New York, 391 U.S. 462 (1968)
24.   I. M. Amusement Corp. v. Ohio, 389 U.S. 573 (1968)
25.   Robert Arthur Management Corp. v. Tennessee, 389 U.S. 578 (1968)
26.  Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968)
27.   Henry v. Louisiana, 392 U.S. 655 (1968)
28.   TeitelFilm Corp. v. Cusack, 390 U.S. 139 (1968)
29.   Carlos v. New York, 396 U.S. 119 (1969)
30.   Von Cleefv. New Jersey, 395 U.S. 814 (1969)
31.   Bloss v. Dykema, 398 U.S. 278 (1970)
32.   Cain v. Kentucky, 397 U.S. 319 (1970)
33.    Walker v. Ohio, 398 U.S. 434 (1970)
34.   Hoyt v. Minnesota, 399 U.S. 524 (1970)
Signed decision:
Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) (two cases)
The Supreme Court had long upheld laws against obscenity until President Lyndon B. Johnson appointed his personal lawyer Abe Fortas to the Court as an associate justice in 1965. Fortas then voted for pornographers in the series of Court decisions in 1966 and 1967 that changed U.S. law on pornography and flooded the country with lewd materials that previously had been available only on the black market. In one of his decisions in favor of pornographers, Fortas voted to reverse the conviction of a corporate publisher of pornography, William Hamling, who had been a Fortas client. Hamling had paid Fortas a fee to get a valuable second-class mailing permit for his lewd magazine. Hamling once bragged that he had hired Abe Fortas as his attorney because Fortas "could fix anything no matter who was in power." When Chief Justice Earl Warren announced his resignation on June 26, 1968, LBJ nominated Fortas to be Chief Justice. In a dramatic confirmation battle that fall, the Senate rejected Fortas's promotion to Chief Justice primarily because of his conflicts of interest involving pornographers. The revelations during the confirmation process resulted in Fortas's resignation as Associate Justice of the Supreme Court on May 14,1969.
Warren's announcement (of his resignation, which was to become effective only on confirmation of his successor) was planned so that President Johnson could appoint the new Chief Justice, rather than Richard Nixon who was expected to be elected in November 1968 (and whom Warren hated). After the Senate refused to confirm LBJ'S choice of Fortas, Warren served another term, and Nixon appointed Warren Burger in 1969.
The Supreme Court entertained so many obscenity cases that Bob Woodward's 1979 book, The Brethren, described a regular "movie day," when the justices and clerks would watch pornographic movies related to cases under consideration.
6   Judges Foster Feminism
' Ruth Bader Ginsburg co-authored the book called Sex Bias in the U.S. Code in 1977 with another feminist, Brenda Feigen-Fasteau, for which they were paid with federal funds under Contract No. CR3A010.The 230-page book was published by the U.S. Commission on Civil Rights. It was written to identify the federal laws that allegedly discriminate on account of sex and to promote ratification of the then-pending federal Equal Rights Amendment (ERA), for which Ginsburg was a fervent advocate.
Sandra Day O'Connor's voting record in the Arizona State Senate includes the following: On April 29, 1970, she voted Yes on H.B. 20, an abortion-on-demand bill, in the Senate Judiciary Committee. On April 30,1970, she voted Yes on the same bill in the Republican Majority Caucus (where the bill was defeated). On April 23,1974, she voted No in the Senate Judiciary Committee on a Right to Life Memorial asking Congress to extend constitutional protections to the unborn. On Feb. 8, 1973, she co-sponsored the Family Planning Act (S.B. 1190) to provide "family planning," including abortions, to minors without parental consent. In May 1974, she voted No on an amendment to prohibit abortions at the taxpayer-supported University of Arizona Hospital. On March 23,1972, she co-sponsored the Equal Rights Amendment (which Arizona consistently rejected). On April 15, 1971, she succeeded in amending anti-pornography bills (H.B. 301 & 302) so that porn shops ("adult bookstores") could be 4,000 feet from schools and parks instead of at least a mile away. In 1973, she sponsored Arizona's no-fault divorce bill (H.B. 1007).
7  Judges Handicap Law Enforcement
In Furman v. Georgia, the Supreme Court invalidated capital punishment in Georgia and Texas and effectively overturned death penalty statutes everywhere else in the country. At least 41 jurisdictions were directly affected. The impact of this unprecedented decision was staggering. In Florida alone, the Furman decision had the effect of voiding 102 executions of criminals convicted of heinous crimes.
Despite overwhelming public support for the death penalty, California was unable to execute a single convicted murderer between 1967 and 1992, when Robert Alton Harris was finally sent to the gas chamber. He had killed two teenagers and finished off their half-eaten hamburgers afterwards. On parole for voluntary manslaughter when he murdered them, he reportedly laughed about his killing spree and did not dispute his guilt. Yet attorneys and courts delayed his original execution date in 1981 for over ten years, until finally the U.S. Supreme Court itself felt compelled to withdraw jurisdiction over the case from all lower federal courts Vasquez v. Harris (1992).
8   Judges Interfere with Elections
The Supreme Court is on the verge of reentering the political thicket of reapportionment in a major way. In Vieth v. Jube-lirer (2004), the Supreme Court reviewed reapportionment in Pennsylvania, where it had been alleged that the majority party redrew the district boundaries in order to favor themselves. Four justices agreed that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. Justice Kennedy seemed to agree, as he said: "Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights."
But that doesn't make it hopeless for a supremacist such as Kennedy, as he went on to say: "It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines.... Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering."
Kennedy and the other supremacist justices seem to invite future cases that would give the Court the opportunity to invent new standards for reviewing and redoing apportionment decisions. Justices Stevens, Souter, and Breyer each have their own ideas for what those standards might be. For example, Breyer wants to review and reverse "the unjustified use of political factors to entrench a minority in power."
Political reapportionment is often hotly contentious and subject to political deal-making, but it won't be improved by turning it over to judges who cannot even identify the criteria that they would use for drawing district lines.
How a court-ordered recount of the Florida ballots in 2000 might have turned out has been a matter of some speculation, as it is difficult to predict what standards the courts would have used once they abandoned the pre-election standards. One group of newspaper reporters led by USA Today concluded (May n, 2001): "Who would have won if Al Gore had gotten the manual counts he requested in four counties? Answer: George W. Bush. Who would have won if the U.S. Supreme Court had not stopped the hand recount of undervotes, which are ballots that registered no machine-readable vote for president?
Answer: Bush, under three of four standards. Who would have won if all disputed ballots - including those rejected by machines because they had more than one vote for president - had been recounted by hand? Answer: Bush, under the two most widely used standards; Gore, under the two least used." Thus, Bush probably would have won a court-ordered recount, but Florida judges could have manipulated the outcome to make it appear that Gore won.
Regarding the sales pitch for touch-screen voting machines: The core logic behind the Ninth Circuit ruling was based on the Berkeley study. The study was funded by Sequoia Voting Systems, a major provider of touch-screen voting machines, which is actively seeking additional contracts to install its equipment in California counties.
As the ballots were being counted after a statewide election in Alabama in 1994, it appeared that the first Republican would be elected to the state supreme court since Reconstruction days. With a few thousand absentee ballots still uncounted and Republican Perry Hooper appearing to be ahead, the Democrats rushed into court to ask a judge to change the rules. The Alabama statute was very clear that the absentee ballots had to be notarized by the voter in order to be counted, and that procedure had been followed for years. The Democrats demanded that the court rewrite the law and eliminate that requirement. The Democrats kept the case in court for a year, trying to get judicial supremacists to order the counting of illegal ballots. Finally, the Eleventh Circuit U.S. Court of Appeals upheld the law in Roe v. State of Alabama and allowed Perry Hooper to take his seat as chief justice of the state supreme court.
9   Judges Impose Taxes
' The Nevada supreme court decision was severely criticized at 117 Harvard Law Review 972 (Jan. 2004), which concluded that the decision "poses a serious threat to the separation of powers."
' Las Vegas Review columnist Vin Suprynowicz (July 20, 2003) wrote that the crucial Nevada Supreme Court decision was decided long before the lawsuit was actually filed. Citing a retired Nevada judge, Suprynowicz wrote that Governor Guinn spoke with Justices Bob Rose and Miriam Shearing at the beginning of the budget battle and received assurances from them that the Nevada supreme court would impose his proposed tax hikes. They even predicted that it would be a 6 to i vote, which turned out to be the exact outcome of the Nevada supreme court decision. The U.S. Supreme Court declined to hear an appeal of the case.
An especially egregious example of judicial usurpation of legislative power occurred in Yonkers, New York, in 1988. When the Yonkers city council voted 4 to 3 not to ratify a court ordered plan to build rent subsidized multi-family housing in a predominately white neighborhood, federal district judge Leonard Sand slapped huge fines on the individual members of the city council who had voted against the judge's plan. After the individual fines had been upheld by the Second Circuit U.S. Court of Appeals, the city adopted the judge's plan in the face of daily fines of $i million. The Supreme Court rejected the personal fines on narrow technical grounds in a 5 to 4 decision. Spallone v. United States (1990).
10   How Judicial Supremacy Began
This law review article gives some of the history o£ Marbury v. Madison: "There is, then, no doctrine of national, substantive judicial supremacy which inexorably flows from Marbury v. Madison itself, i.e., no doctrine that the only interpretation of the Constitution which all branches of the national government must employ is the interpretation which the Court may provide in the course of litigation." "A Critical Guide to Marbury v. Madison" by William W. Van Alstyne, 18 Duke Law Journal 1-47 (1969).
Jefferson's "obiter dissertation" comment is from his letter to Justice William Johnson, Monticello, June 12,1823.
The concept of judicial review has a strong form and a weak form. The weak form of judicial review occurs when, in the course of deciding a specific case, a court construes a statute in the light of a superior constitutional interpretation. The strong form of judicial review consists of using the Constitution (or previous judicial interpretations of it) to override the plain text meaning of a statute, and construing the statute as it might apply hypothetically to entities that are not parties to the case before the court. Chief Justice John Marshall only gave us the weak form of judicial review. He had nothing to do with the strong form of judicial review so prevalent today.
The notion of judicial supremacy should not be confused with federal supremacy. Federal supremacy is the principle that federal laws override or preempt state and local laws, but only in the use of the federal government's delegated powers as defined by the Constitution.
The opposition to judicial supremacy by Jefferson and Lincoln is explained in "Lincoln on Judicial Despotism" by Robert P. George, First Things, Feb. 2003,130: 36-40.
ii   How Judicial Supremacy Grew
U.S. News & World Report published the text of the ABA Report on Communist Tactics, Strategy and Objectives, Aug. 16,1957, p. 135. The 1958 report of the same ABA committee, which was very similar, was placed the Congressional Record by Senator Styles Bridges on Aug. 22,1958, and again by Senator Everett Dirksen on March i, 1962.
Senator James O. Eastland's analysis of the Warren Court was published in U.S. News & WorldReport, July 18,1958, 81.
Justice Brennan took the judicial supremacy of Cooper v. Aaron to new extremes when he invoked the "spirit" of a statute in order to violate its express language and thereby embrace the use of quotas in a hiring agreement (United Steelworkers v. Weber, 1979). That led now-Chief Justice Rehnquist in dissent to mock Justice Brennan's decision as "a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini." Since then thirty court opinions have questioned, criticized or distinguished the supremacist ruling in Steelworkers.
The Latin phrase obiter dicta (meaning words said in passing, or by the way) is used to describe extraneous parts of a court opinion. This is often abbreviated as dicta (meaning words). Sometimes the words help explain the decision or are otherwise informative, but they aren't necessary to reach the conclusion. Law schools used to teach courses in "Legal Method" or "Elements of the Law" in which students were taught to distinguish and disregard dicta as nonbinding and non-precedential. However, the Warren Court popularized reliance on dicta so much that those courses aren't even taught any more. Thomas Jefferson used a variation of the phrase obiter dicta when he called Marbury v. Madison an "obiter dissertation."
Judicial supremacy is promoted with various myths and misconceptions about the history of the Court. For example, Justice Stephen Breyer gave a speech to a 2001 American Bar Association meeting, citing two cases he thought were particularly instructive. He was trying to teach the lesson that poor defenseless people need judicial supremacy, and that America would be a better place if the other branches of government took their policy orders from the Supreme Court. Referring to the 1832 Cherokee Indian case (Worcester v. Georgia), Breyer said that thousands of Indians died because Andrew Jackson refused to enforce a Supreme Court order. Referring to Cooper v. Aaron, Breyer said that Eisenhower enforced the court order by sending federal troops so that black children could attend good schools.
But Justice Breyer's facts are completely wrong. The Supreme Court in 1832 ruled only in favor of a couple of white missionaries, not the Cherokees. Jackson did not defy a Supreme Court decision. Several thousand Cherokees did die, but that had nothing to do with any Supreme Court decision and it happened six or seven years later after Jackson left office.
Breyer said that Eisenhower sent troops to enforce Cooper v. Aaron. In reality, Eisenhower sent the troops in 1957 and withdrew the troops at the end of the school year in 1958, before Cooper v. Aaron was decided. The Arkansas schools were being desegregated. Then, Cooper v. Aaron threw the Little Rock schools into such chaos that the high schools were closed for the entire 1958-59 academic year.
Of course, Breyer likes Cooper v. Aaron because it was the first statement of judicial supremacy since Dred Scott in 1857, but that is no excuse for getting the facts wrong. It appears that the whole basis for his belief in judicial supremacy is in these myths.
12   How To Stop Judicial Supremacy
The Daschle law about brush clearing is Public Law 107-206, Sec. 706(1), which states: "Any action authorized by this section shall not be subject to judicial review by any court of the United States." The law authorized the Interior Department to clear timber in the Black Hills of South Dakota in order to fight and prevent forest fires. Environmental groups had filed several lawsuits to stop timber clearing. At least one court had issued an order and other suits were pending. The Daschle law terminated all these suits so that timber clearing could continue without judicial interference. The constitutionality of Congress terminating those lawsuits has not been questioned.
Chief Justice Oliver Ellsworth had served as a member of the Committee of Detail at the Constitutional Convention, which drafted the provision in Article in authorizing Congress to limit the jurisdiction of the Supreme Court. Chief Justice Ellsworth wrote in Wiscart v. Dauchy (1796): "The Constitution, distributing the judicial power of the United States, vests in the Supreme Court, an original as well as an appellate jurisdiction. The original jurisdiction, however, is confined to cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. In all other cases, only an appellate jurisdiction is given to the court; and even the appellate jurisdiction is, likewise, qualified; inasmuch as it is given 'with such exceptions, and under such regulations, as the Congress shall make.' Here then, is the ground, and the only ground, on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it. The question, therefore, on the constitutional point of an appellate jurisdiction, is simply, whether Congress has established any rule for regulating its exercise?"
The GAO study, released in 1997, found 1,049 federal statutory provisions in the United States Code, as of the date DOMA was signed into law, in which benefits, rights and privileges are contingent on marital status or in which marital status is a factor. Subsequently, the GAO identified 120 statutory provisions involving marital status that were enacted between Sept. 21, 1996 and Dec. 31,2003, and 31 provisions that were repealed or amended to eliminate marital status as a factor. Consequently as of Dec. 31, 2003, the revised GAO total of federal statutory provisions in which marital status is a factor is 1,138.
The Supreme Court affirmed a provision of the Ohio constitution requiring near-unanimity by its supreme court before reversing a lower court and invalidating a statute as unconstitutional (Ohio ex rel. Bryant v. Akron Metropolitan Park District, 1930). Congress could simply withdraw jurisdiction from the Supreme Court (and lower courts) to invalidate any Act of Congress by a vote of fewer than seven out of nine Justices.
Sarasota Circuit Court Judge Harry Rapkin was properly criticized for his handling of the probation of Joseph P. Smith, who was charged in the death of Carlie Brucia. Sarasota Herald Tribune, April 23, 2004.
The law that authorizes attorney's fees to the ACLU and others for anti-God lawsuits was passed by the Watergate Congress in 1976 under the name "Civil Rights Attorney's Fees Awards Act." It is codified as 42 U.S.C. Section i988(b). Congress should repeal or amend it so that attorney's fees are not allowed in lawsuits claiming a violation of the Establishment Clause.
This 1996 law review article documents how scholars have shifted toward the individual rights interpretation of the Second Amendment. It says that only three out of thirty-four law review articles written since 1980 oppose the individual rights interpretation, and two of those were written by anti-gun lobbyists. "Toward a Functional Framework for Interpreting the Second Amendment" by Scott Bursor, 74 Texas Law Review 1125-1151 (1996).
The quotation from Thomas Jefferson is from his letter to Charles Hammond in 1821.
For the Supreme Court justices discussing Bunting v. Mellen in eight conferences, see the article by Linda Greenhouse, New York Times, April 27, 2004.
For the Redlands controversy, see the Associated Press or Los Angeles Times, April 29, 2004.
Web links are available online at http://www.PhyllisSchlafly.com