- The Washington Times - Monday, April 11, 2005

The Judeo-Christian Council for Constitutional Restoration sponsored a crackling two-day conference last week to champion the impeachments of Supreme Court Justices who anguish its adherents.

Featured orators claimed conservative credentials. But their bugle cry was revolutionary: the destruction of an independent judiciary with the power to declare acts of Congress and the states unconstitutional.

As reported by Dana Milbank in The Washington Post on Saturday, celebrated speaker Edwin Viera summoned Bolshevik revolutionary Josef Stalin to provide counsel for dealing with wayward Supreme Court Justices. Mr. Viera explained that, “[Stalin] had a slogan, and it worked very well for him, whenever he ran into difficulty: ‘No man, no problem.’ ”

Mr. Viera’s harshness was echoed in different moods and tenses by conservative grandees Phyllis Schlafly and Michael P. Ferris. The former insisted the Constitution does not mean what the Supreme Court says it means, and insinuated its true meaning lies with her or others blessed with constitutional epiphanies. That principle would justify popular disobedience to Supreme Court decrees, like the South’s massive resistance to Brown v. Board of Education (1954) and the bombings of abortion clinics in defiance of Roe v. Wade (1973). The rule of law would wither and a revolutionary state of nature would ensue if the Supreme Court were not accepted as the final arbiter of constitutional questions, subject to constitutional amendments, for example, the Sixteenth Amendment’s empowerment of Congress to levy income taxes to overcome Pollock v. Farmers’ Loan & Trust Co. (1895).

Mr. Ferris urged authorizing Congress to vacate Supreme Court precedents, and to impeach federal judges wholesale who stray from his infallible understanding of the Constitution. He tacitly scoffed at the Founding Fathers, who deplored legislative tampering with final court decrees. As Justice Antonin Scalia recounted in Plaut v. Spendthrift Farm, Inc. (1995): “This sense of a sharp necessity to separate the legislative from the judicial power, prompted by a crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution.”

President Abraham Lincoln voiced a similar urgency for the rule of law in his first Inaugural address: “[N]or do I deny that such [Supreme Court] decisions must be binding in any case, upon the parties to a suit…. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled, and never become a precedent for other cases, can better be borne than could evils of a different practice.”

Mr. Viera, Mrs. Schlafly and Mr. Ferris would make a revolution in the nation’s judiciary with a leap of faith regarding human nature akin to the three who made the Russian Revolution: V.I. Lenin, Leon Trotsky and Stalin. The genuinely conservative Founding Fathers acclaimed what the revolutionaries would destroy: an independent Supreme Court with the power of judicial review as a cornerstone of separation of powers.

James Madison, father of the Constitution, elaborated in Federalist 51: “[T]he great security against a gradual concentration of the several powers in the same department consists of giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition. … It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”

Accordingly, Madison praised an independent judiciary as necessary to frustrate the predictable abuses of the legislature and executive. In defending the Bill of Rights, Madison amplified: “If [the amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”

Alexander Hamilton, in Federalist 81, underscored the superiority of judges to legislatures in interpreting the Constitution: “The same spirit which had operated in making [laws] would be too apt to operate in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators would be disposed to repair the breach in the character of judges…. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the station of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear the pestilential breadth of faction may poison the fountains of justice.”

The Republican and Democrat Party machinations that have besmirched congressional adjudication of election disputes under Article I, section 5 confirm Hamilton’s legislative suspicions. And as to defective information, I can personally testify that an alarming percentage of representatives and senators regularly mistake the Constitution for the Declaration of Independence, President George Washington’s Farewell Address or President Lincoln’s Gettysburg Address. Their knowledge of Supreme Court decisions and constitutional history is sparing at best.

Contrary to the revolutionaries, Chief Justice William H. Rehnquist decries the impeachment of federal judges for unpopular rulings. That unwritten constitutional rule was established two centuries ago when the Senate refused to convict Associate Justice Samuel Chase for alleged errors or bias in judging.

Contrary to the revolutionaries, the chief justice has applauded judicial independence as the crown jewel of the Constitution.

Contrary to the revolutionaries’ wishes, not a single Republican appointee voted to disturb the judgment of Florida courts in the protracted Terri Schiavo litigation.

At the Supreme Court level, the chief justice and Associate Justices Scalia and Clarence Thomas authored key Supreme Court precedents that sustained the state court judgment and condemned the ill-informed legislative frolic of Congress.

To paraphrase Voltaire, while both lawyers and laymen should be unreluctant to criticize Supreme Court decisions, they should be equally unreluctant to defend to the death an independent judiciary empowered to thwart constitutional abuses by co-equal branches of government.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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