The time will come for the men responsible for this to answer for their behavior. -- Rep. Tom DeLay (R-TX)

I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that’s been on the news. And I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in ­ engage in violence. -- Sen. John Cornyn (R-TX)

With the president likely to appoint at least one justice to the Supreme Court in the next year, the far right has ramped up their all-out war against the judiciary. Not only do they dislike the outcomes of certain cases, but they are trying to delegitimize the entire branch of government, with the end goal of making it a permanent part of the right wing of the Republican Party.

This past weekend, radical conservatives held a conferences (in response to the Schiavo case) entitled "Remedies to judicial tyranny," where prominant conservative activists concocted new ways to bend the independent judges into judges dependent on the favors of politicians. As Dana Milbank recounts in the Washington Post:

[L]awyer-author Edwin Vieira told the gathering that [Justice] Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law." Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said. The full Stalin quote, for those who don't recognize it, is "Death solves all problems: no man, no problem." (Dana Milbank, "And the verdict on Justice Kennedy is: Guilty," Washington Post, 4/9/05)

The remarks of Vieira, and of DeLay and Cornyn, while not explicitly advocating assassination of judges, certainly appeal to that extremist, autocratic tendency. The stated panic over "unelected judges" who are making decisions about the Constitutionality of laws passed by Congress (like in the recent Supreme Court decisions), or who are deciding cases based on the process of state law (like in the Schiavo case), seems to forget that those are actually the jobs that the judiciary has always had. And their independence from the partisan branches is just as important as it ever was, if not more so.

MYTH: Judges who protect individual rights are tyrants

Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of "evolving standards" and promoting the general welfare, decreed that we all participate in some fitness exercise? ... Would you prefer the justices to rule along the lines they did in the recent Roper v. Simmons case, finding the execution of teenagers unconstitutional because, as Justice Anthony Kennedy speaking for the 5-4 majority said, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty"? ... Or, would you prefer the justices to say, "We're guided by the U.S. Constitution, and we find no constitutional authority to rule that Americans must regularly bike, despite your nonsense argument about the 'promoting the general welfare' clause; get out of our court"? ... [Democrats would] prefer justices who share former Chief Justice Charles E. Hughes' vision that, "We live under a Constitution, but the Constitution is what the judges say it is." Translated, that means we don't live under the Constitution; we live under tyrannical judges. (Walter E. Williams, "The law or good ideas? Town Hall, 3/31/05)

REALITY

As we have outlined previously, the Court's fifty-year-old method of examining "evolving standards of decency" specifically applies to the application of the prohibition against cruel and unusual punishment, since the Eighth Amendment does not make a list of unacceptable punishments and our society obviously has come to regard some as unacceptable that were OK in the 18th century. Far from being "tyranny," this examination is demanded by the text of the Constitution. And, like all questions of the application of individual rights, which are not up for majority debate, this job falls to the Supreme Court.

And we also patiently explained that the Court's decision in Roper v. Simmons that executing juveniles is cruel and unusual does not defer to international law, nor international opinion -- its reasoning is based on domestic trends and a methodological correction. Right-wing judicial activists, who moonlight as jingoists, screamed with glee at the mere mention of the fact that the United States was the only country in the world to consider juvenile execution a proper and humane activity. What was written as a shameful reminder -- "not controlling our outcome," as the Court wrote -- morphs, through the magic of selective quotation, into some kind of foreign invasion.

If Williams thinks that the Court's constitutional role in deciding the application of the Bill of Rights -- protecting individual rights from the government -- will somehow turn into the exact opposite, then he is either indulging in pure fantasy (likely) or warning us what will happen when the real activists, the right-wing moral crusaders who see rights as quaint, are packed onto the courts. Who was it who called theocratic Iran an "outpost of tyranny"?

MYTH: Title IX case proves judges are 'activist'

Justice Sandra Day O'Connor's preposterous interpretation of sex discrimination under Title IX of the Education Amendments of 1972 in Jackson v. Birmingham Board of Education (March 29) epitomizes the Senate Democrats' conception of good judging.... Title IX commendably prohibits sex discrimination by recipients of federal educational funding.... Unlike sister civil rights statutes, like Title VII of the Civil Rights Act, Title IX's language does not condemn retaliation against persons who have complained of Title IX infractions. ... The enormity of the stakes in thwarting the threatened Democrat filibustering of President Bush's Supreme Court nominees should be self-evident. (Bruce Fein, "Wretched judging," Washington Times, 4/5/05)

REALITY

It's certainly strange for right-wing commentators to point to Reagan-appointed Justices Kennedy and O'Conner, who function as swing votes on the conservative Court, as liberal archetypes. They are not. They are conservatives who do not always toe the fundamentalist line of Scalia and Thomas, which means that they often find themselves on one side or the other of arguments based reality-based interpretation of the text, as opposed to the ahistorical, outcome-based formulas of the right-wing champions.

Nevertheless, the case of Jackson v. Birmingham does demonstrate how shallow Justice Thomas's decisions can be. Even though the Bush has named Thomas as a model for his future appointments, the president's administration actually supported the majority decision, which confirmed the long-held prohibition on retaliation for complaining about sex discrimination in Title IX's education code. Social conservatives like Phyllis Schlafly have long complained about Title IX as an abomination of Biblical roles for women, or something (Esther never played basketball).

Title IX, passed in 1972, was written in the context of the Civil Rights Act of 1964 against racial discrimination, as a kind of corresponding version for sex discrimination. Thomas's dissent relies on a creative reading of Title IX as if it were written by taking the Civil Rights Act of eight years earlier and removing a bunch of sections -- absence equals implicit repudiation. In fact, contrary to CRA, Title IX is written in very broad language. As O'Conner points out in the majority opinion, "Because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice [retaliation] to be covered." A "strict" reading of the word "discrimination," by Thomas's standard, would have it not applicable to anything at all -- because its applications are not listed along side it.

In addition to his "strict" interpretative sleight of hand, Thomas is known for ignoring precedent -- in this case, what the Court has decided constitutes discrimination. Retaliation, of course -- Jackson, the coach of a high-school girls' basketball team, claims he was fired for making a complaint about shoddy equipment and facilities. But Thomas also objects to Jackson's complaint because he's not a woman. In this particular arena of retaliation over complaints of discrimination, the Court held back in 1969 that 'retaliation' in the Civil Rights Act applied to a white person punished for defending a black tenant, i.e., as O'Conner puts it, the Court "interpreted a general prohibition on racial discrimination to cover retaliation against those who advocate the rights of groups protected by that prohibition." Title IX, written just three years later, should be read in that context.

It is important to note that, in practice, these details are important in Title IX having any meaning. Since many schools require a formal complaint before any action, a stubborn school in Thomas's world could simply fire anybody who complains. Title IX would then be a cute adornment with no effect in law. Somebody concerned with "intent," as Thomas is in this case, might wonder why Congress bothered with the law at all.

Mr. Fein, as a predictably histrionic activist for a right-wing judiciary, sees O'Conner as embodying a "liberal type" of justice -- which is false, as she is an old-fashioned conservative -- and sees Thomas as embodying one who "honor[s] the discernible intent of the Founding Fathers and Congress as deduced from the language they employed." But in this case, Thomas demonstrates how this "strict construction" can easily cover for an activist opinion, as his nihilistic, selective contextualism would deprive an undesirable law of any meaning or effect whatsoever.

MYTH: Obscenity case proves judges are 'activist'

Judge Gary Lancaster dismissed a 10-count obscenity indictment against the alleged distributors of hard-core pornography, Extreme Associates.... Where did this so-called right to privacy relied on in the Extreme Associates ruling originate?  Was it in the Constitution?  Well, no, at least not in the words of the document.  But activist judges seldom rely on the words of the Constitution but on opinions of other judges that can be stretched and re-interpreted to fit the causes activists choose to promote or protect.  Over time, the original intent of the Constitution gets lost in the sediment from layers of judicial interpretations.... These judges are legislating from the bench despite the fact that creating law and new rights is not the job of judges.  The Constitution endowed Congress and the states with the powers to make laws, including obscenity laws.  The job of the courts is to interpret the laws impartially in accordance with the Constitution, not to forward agendas that undermine the public good. (Alan Sears, "Where is that in the Constitution?" Town Hall, 3/31/05)

REALITY

It is true, Alan Sears, president of the religious-right Alliance Defense Fund, says: the Constitution makes no mention of pornography, nor of what defines it and separates it from other forms of speech, art, or private thought. If our founding document did go into the juicy details, maybe more schoolkids would read it.

Obscenity laws that prohibit adults from viewing legal pictures or words in their own homes have long been held unconstitutional. As that 1969 decision put it, "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." But obscenity laws that prohibit selling or even exchanging such material, privately -- i.e. no one other than the two parties involved would be exposed -- those laws stand. While the Court has no business classifying things as "art" or "speech" versus "obscene," it apparently has business determining allowable social experiments in enforcing public morality.

It certainly seems strange, then, for conservatives who want judges to avoid using a personal agenda in interpreting the Constitution to complain about a judge who decided he had no capacity to take part in the old "I know it when I see it" method, or discerning which private acts of supposed immortality the state can regulate (mailing "porn") and which it can't (viewing "porn").

Judge Lancaster's opinion, which will probably be reviewed at a higher level, ought to be a victory for judicial restraint and the principles of the Constitution. It's too bad that conservatives aren't as interested in these values as they are in their parochial outcomes.