Today, our “Ask the Author” series continues, and our guest is Phyllis Schlafly. Phyllis’s book about the status of the judiciary and the Supreme Court in America, The Supremacists: The Tyranny of Judges and How to Stop It, has recently been revised and expanded.
For the last forty years, Phyllis has been a prominent voice in the conservative movement, and she is a lawyer by training, having received her J.D. from Washington University Law School. The organization that she founded in 1972, Eagle Forum, regularly files amicus briefs before the Supreme Court.
Below is Part 1 of our discussion; Part 2 will be posted tomorrow.
Let’s begin by addressing the main idea of your book, which is that the judicial branch in general, and the Supreme Court in particular, have been “assaulting the Constitution” for roughly the last forty years (since the Warren Court). What forces do you think the Court began responding to when it started down this path?
My book is not about the last 40 years since the Warren Court. It is about the last 50 years beginning with the Warren Court. The Warren Court certainly was not responding to the public will; it was charting an entirely new course of judicial policymaking. Earl Warren was a politician, not a judge, who won both the Democratic and Republican nominations for governor of California. He was far more interested in politics than the law. He played to the media and was manipulative. When it was popular to intern Americans of Japanese descent during World War II, he supported that. When it became popular with the media to take the opposite position later, he did that. He even planned the timing of his retirement to try to prevent a newly elected President Nixon from nominating his replacement.
It was a colossal mistake by Eisenhower to nominate Earl Warren for Chief Justice directly from his position as Governor of California. That was the result of a political deal made by Eisenhower’s handlers at the 1952 Republican National Convention to get Warren to deliver the California delegation on the crucial Rules vote so Eisenhower could win over Robert Taft. The deal was unknown to candidate Eisenhower, but as President he felt he had to honor the bargain. He later admitted it was a mistake to appoint Warren.
Chief Justice Warren embarked on a path of judicial activism and supremacy unlike anything in our history. The Supreme Court was not responding to any national demand for the Court to make its activist decisions such as banning prayer from public schools, overturning all our laws against obscenity, changing the way state legislatures are elected, or creating a new constitutional right for illegal aliens to be admitted to public schools. The tremendous opposition to the Warren Court’s pro-Communist decisions in the 1950s (even by the American Bar Assocation) shows that the Warren Court was out of touch with the will of the people.
Warren-style judicial supremacy did not start with Marbury v. Madison, which was a decision of relatively limited reach. The prime example of pre-Warren judicial supremacy was Dred Scott v. Sanford, which the liberals don’t like to talk about because it is so embarrassing. That’s why they like to cite Marbury.
You also make clear that the assault has continued right through the present time. How did the assault continue despite having a Supreme Court with either 7 or even 8 of its 9 members appointed by Republican presidents for much of that time period, including three straight Chief Justices who were Republican appointees?
I am afraid you misunderstood my book if you think that I just want more Republican judges. I want judges to decide cases based on existing law, not to promote some ideology. Justice Scalia made a related point recently. The Washington Post reported that during a panel on the judiciary sponsored by the National Italian American Foundation, Scalia dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges. “You talk about independence as though it is unquestionably and unqualifiably a good thing,” Scalia said. “It may not be. It depends on what your courts are doing. . . . The more your courts become policymakers, the less sense it makes to have them entirely independent.” (Cites here and here.)
Justice Scalia is right. If the judges are going to be policymakers, then I’d rather that they be conservative Republicans who share my political views. But I believe that the proper role of a judge is to be more like an umpire than a policymaker. If the judge is doing his job correctly, it should not matter whether he is a Republican or a Democrat.
Being Republican is no guarantee of judicial restraint, and some judges become supremacists after they are protected by life tenure on the bench.
The nomination of each of those Republican-President-nominated justices can be explained by the way the nomination process unfolded. For example, Reagan had made a campaign promise to appoint a woman, and O’Connor was the only female judge he was presented with. Once on the Court, Republican justices had to deal with, and typically apply, the precedents established by the Warren Court.
You strongly endorse the job description that Chief Justice Roberts outlined in his confirmation hearings; he said that it’s his job “to call balls and strikes and not pitch or bat.” Can you elaborate on what that theory of judging is, and why you like it?
The baseball analogy is a good one, and I used it in my book and speeches before Chief Justice Roberts used it. Nobody disputed that the Cardinals won the game that put them in this year’s World Series against the Tigers when the umpire ended the game with a called third strike. But if the umpire had called the batter out after two strikes, the fans would not have tolerated it because the umpire cannot change the rules of the game.
The proper role for a judge is to make the close calls and resolve the gray areas left by other branches of government. It is not to rewrite or overrule laws decided by a legislature or to create new rights. Judges have no business substituting their policy views for decisions made by elected legislators. Supremacist judges have no business changing words in the U.S. Constitution, such as changing “public use” to “public purpose” in the Kelo decision. We have a process for amending the Constitution, but the judges are not part of it. The judiciary should behave like the “least dangerous branch” intended by our Founders, and as described by Alexander Hamilton in Federalist 78.
The uniting idea in your book seems to be that judges should be quite restrained. You argue that it is not their job to “legislate from the bench”; in areas from abortion to religion in the public sphere to obscenity, you criticize the courts for taking power away from states, local governments, and school boards. What happens, though, when localities make laws that you personally disagree with? Some would say that doctrine of federalism dictates that the Supreme Court should have upheld laws allowing the use of medicinal marijuana in California – do you agree?
What happens is that I participate in the political process like 300 million other Americans to change the laws I dislike. I do not expect a handful of unelected, life-tenured individuals to change laws to conform to their personal notions of what should be our policies, which they often do in an attempt to obtain media accolades.
Coming tomorrow in Part 2: Phyllis shares her views on the Supreme Court’s gender discrimination jurisprudence, how the Congress should react to what she feels is the Court’s hostility toward religion, and what she hopes to see in two important upcoming cases.
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