Holly Yeager: The Republican Attack on the Judiciary

Holly Yeager, in the London Financial Times (5-10-05):

Over the past three months Regnery, a small rightwing publisher based in Washington, has had a provocative new hit on its hands.

Regnery made a splash during the presidential campaign with Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry. Now the hot title is Men in Black, in which Mark Levin - a radio host and president of Landmark Legal Foundation, a conservative advocacy group - sets out "how America has turned from the most representative form of government to a de facto judicial tyranny".

Mr Levin's anger is directed at many of the men (and women) cloaked in the dark robes worn by US judges, who, he says, have subverted the checks and balances of the constitution to impose their beliefs on society. As sales of Men in Black show - it spent 10 weeks on The New York Times bestseller list - hostility to such "judicial activism" is growing. ...

...Several recent court rulings have raised conservative ire. They include a Supreme Court ruling that found the death penalty unconstitutional for juveniles and another that struck down a Texas sodomy law. Mr DeLay has singled out Anthony Kennedy, the author of both those decisions, complaining that he referred to international approaches to the death penalty in reaching his ruling. Reference to international law particularly troubles conservative critics of the courts, who argue that decisions should be based on the constitution and the facts of the cases before them.

David Garrow, a legal historian at Emory University in Atlanta, says there have been "anti-judicial firestorms" like this in the past. He sees a parallel with the mid-1950s, when conservatives reacted angrily to court rulings that admonished legislatures for anti-communist investigations.

However, Jon Butler, professor of American religious history and dean of the Graduate School of Arts and Sciences at Yale, says the religious overtones of the current debate distinguish this period from others. "What's unusual now is that religious conservatives are attacking the courts and the attack is not just political in character but makes the claim that the courts are attacking religion per se," Mr Butler says. That religious context is what makes the argument so heated, he says, calling it "a volatile mix of religious anger and political anger and a religious sense of self-righteousness".

That volatile mix was on display last month at a nationally televised rally organised by the Family Research Council, a lobby group strongly associated with Christian conservative positions, to build support for changing the Senate rules on judicial nominees. Advertisements for the event charged that the filibuster was being used "against people of faith", prompting an angry reaction from Democrats. here have been other warnings to conservative leaders that they must tread carefully in this fight. Some liberal activists have tried to link the moves to President Franklin D. Roosevelt's failed "court- packing" plan, in which, emboldened by his 1936 election victory, he tried to increase the membership of the Supreme Court, which had blocked many provisions of his New Deal.