Supreme Court’s Judicial Activism Criticized at Eagle Forum Conference

Published September 25, 2015

Eagle Council XLIV was held two weekends ago at the Marriott St. Louis Airport – St. Louis, Missouri. Six hundred members and friends attended. Conservative icon, Phyllis Schlafy, who started Eagle Forum in 1972, was celebrated for building a grassroots conservative movement and her victory against the Equal Rights Amendment.

Here is Schlafly’s own account.

Last year to celebrate Phyllis Schlafly’s 90th birthday, World Net Daily’s Joseph Farah wrote this article about her titled, “Happy Birthday, Phyllis Schlafly.” Earlier this year, after 42 years as president, Phyllis Schlafly relinquished her position to Ed Martin. Schlafly, as an American conservative activist, author, and speaker, remains as the Chairman and CEO of the Governing Board at Eagle Forum.

Download a program of the September Eagle Council XLIV Forum in St. Louis, Missouri.

Conference attendees heard from Republican presidential candidates Dr. Ben Carson, Governor Rick Perry, Governor Mike Huckabee, Senator Ted Cruz, Senator Rick Santorum, and Senator Rand Paul. Other well-known speakers included Senator Jeff Sessions, recipient of Phyllis Schlafly Award; Ann Coulter who spoke about her book, Adios, America! and Chief Justice Roy Moore. The Fulltime Homemaker Award was presented by Phyllis Schlafly to Carol Paul, mother of Senator Rand Paul.  

A highlight of the Saturday, September 12 afternoon sessions was a discussion of “Judicial Supremacy and Same-Sex Marriage” by Andy Schlafly, who is the fifth of six Schlafly children. Andy is a conservative lawyer and former engineer that founded Conservapedia, an alternative to the liberal Wikipedia.  He has taught home schoolers online since the late 1990s, and in person since fall 2002. Several of Andrew Schlafly’s prior course materials are available on Eagle Forum University.

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Andy Schlafly (l), Eagle Forum founder 91 year old Phyllis Schlafly (r)

As the nature and origin of judicial supremacy seems to demand a separate article, a succeeding article will deal with how religious liberty is being threatened through the tyranny of judicial supremacy, as reflected in the 5-4 ruling of the Supreme Court on Obergefell v. Hodges.                             .

Judicial Supremacy and the Constitution

The American system of government is established by the United States Constitution, which provides for three separate but equal branches of government–legislative, executive, and judicial.  These three branches make, execute, and interpret the laws that govern our country. Because each branch has both individual and shared powers, no particular branch has more authority than the other two, and each is accountable to the others. As such, the system of “checks and balances” created by our Founding Fathers was to assure that the balance of power in our government remained steady.

What then is “Judicial Supremacy?”

As Phyllis Schlafly writes in the June 2015 issue of the Phyllis Schlafly Report, “Judicial Supremacists vs. ‘We, the People'”, judicial supremacy is when the judges grab power to elevate themselves about the other branches of government. In other words, judicial supremacists are people who think judges are supreme in our system of government, despite how our Founders created three-co-equal branches of government and said that the judiciary is the “least dangerous” branch.  Yet judicial supremacists think that judges can make law, not merely enforce it.”

This might explain why so many conservatives and Republicans were dumbfounded and perplexed when John Roberts, during his confirmation hearings for Chief Justice, made the following statements that contradicted how he later ruled on Obamacare.

“Judges and justices are servants of the law, not the other way around.  Judges are like umpires.  Umpires don’t make the rules; they apply them.  The role of an umpire and a judge is critical.  They make surer everybody plays by the rules.  But it is a limited role.”

Further expressed by Phyllis Schlafly in her book, “The Supremists: The Tyranny of Judges–and How to Stop It”, published in July, 2004, is how the gravest threat to American democracy is the supreme power of judges over political, social, and economic policy.  This was made possible over the years by presidents, congressmen, and voters who have surrendered without a fight.  As such Americans have exchanged the rule of law for the rule of judges.  According to Schlafly, the Constitution is on the People’s side. It provides all the tools necessary—if only we’ll use them—to rescue America from the tyranny of judges.

It stands to reason that Judicial Supremacists are those who ascertain that the Supreme Court System has more power than the other two branches of government. Supremacists not only disregard our Constitution, but they also contradict what Alexander Hamilton wrote in Federalist Papers #78 published June 14, 1788, which examines the Judicial Branch of government.  The Judicial Branch was referred to as the “weakest of three branches.”  It was also considered as the “least dangerous” branch of the federal government because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Origin of Judicial Supremacy?

While some might claim that the tyranny of judges stems from Marbury v. Madison, this is not so.  Although Marbury v. Madison was a landmark 1803 U.S. Supreme Court case in which the Supreme Court formed the basis for the exercise of judicial review under the Constitution, subsequently defining the boundary between the executive and judicial branches of government, the origin of judicial supremacy is attributed to the Dred Scott decision issued by the Supreme Court in March of 1857.  There are those that feel that the Dred Scott decision had the effect of widening the political and social gap between North and South and took the nation closer to the brink of Civil War.  A brief summary follows:

“Dred Scott was the name of an African-American slave. He was taken by his master, an officer in the U.S. Army, from the slave state of Missouri to the free state of Illinois and then to the free territory of Wisconsin. He lived on free soil for a long period of time.  When the Army ordered his master to go back to Missouri, he took Scott with him back to that slave state, where his master died. In 1846, Scott was helped by Abolitionist (anti-slavery) lawyers to sue for his freedom in court, claiming he should be free since he had lived on free soil for a long time. The case went all the way to the United States Supreme Court. The Chief Justice of the Supreme Court, Roger B. Taney, was a former slave owner from Maryland.”

In March of 1857, Scott lost the decision as seven out of nine Justices on the Supreme Court declared no slave or descendant of a slave could be a U.S. citizen, or ever had been a U.S. citizen. As a non-citizen, the court stated, Scott had no rights and could not sue in a Federal Court and must remain a slave.”  Abraham Lincoln reacted with disgust to the Supreme Court’s ruling and was spurred into political action, subsequently making a powerful speech about the Dred Scott decision on June 26, 1857, in which he denounced the Court’s decision with a public commitment not to enforce that sweeping decision beyond the individual parties.  Lincoln’s speech began with these words:

“FELLOW CITIZENS:—I am here to-night, partly by the invitation of some of you, and partly by my own inclination. Two weeks ago Judge Douglas spoke here on the several subjects of Kansas, the Dred Scott decision, and Utah. I listened to the speech at the time, and have read the report of it since. It was intended to controvert opinions which I think just, and to assail (politically, not personally,) those men who, in common with me, entertain those opinions. For this reason I wished then, and still wish, to make some answer to it, which I now take the opportunity of doing.”

The Dred Scott decision was unacceptable to Lincoln.  It was akin to tyranny that five people could create law.  The Lincoln-Douglas debates of 1858reflected a heated word contest about slavery in the United States between both men as candidates for the United States Senate. Illinois happened to be a free state – although not recognized at the time, the Lincoln-Douglas debates previewed the issues that Lincoln was to face after he was elected president.  The Lincoln-Douglas debates also spurred the rise of the Republican Party.  For after losing the election to Douglass, Lincoln edited the texts of all the debates and had them published in a book. This widespread coverage of the original debates and the subsequent popularity of the book led eventually to Lincoln’s nomination for President by the 1860 Republican National Conventionin Chicago.  However, even after his election, Lincoln stood by his promise not to enforce the Supreme Court’s Dred Scott decision

Regarding Andrew Jackson and Worcester v. Georgia (1832)

But Lincoln wasn’t the only president to defy the Supreme Court.  Prior to Lincoln,  President Andrew Jackson defied a ruling of the Supreme Court inCherokee Indians case, Worcester v. Georgia (1832).  As related by Jeffrey Rosen in “The First Hundred Years”:

“For much of the Supreme Court’s first century, its fiercest battles concerned the conflict between national power and states’ rights.  The battle was embodied by the clash of ideas and personalities between the Federalists, led by President John Adams and Chief Justice and the Jeffersonian Republicans, led by President Thomas Jefferson.”

Chief Justice Marshall’s position on Judicial supremacy can be observed in his comments made regarding the landmark Supreme Court case of 803, Marbury v. Madison.

“It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each…This is of the very essence of judicial duty.”

During the administration of Andrew Jackson, Marshall infuriated Jackson in theCherokee Indians case, Worcester v. Gerogia (1832) “by insisting that Georgia law that purported to seize Cherokee lands on which gold had been found violated federal treaties.”  President Andrew Jackson initially ignored the Court’s decision and gained fame for having responded according to Marshall:  “John Marshall has made the decision, now let him enforce it.”

Countering Judicial Supremacy

In recent times, during the presidential cycle of 2012, Newt Gingrich won the pivotal South Carolina primary after declaring that he would reject a Supreme Court ruling that extended legal rights to enemy combatants held at Guantanamo.   Newt has issued an excellent 54-page position paper entitled “Bringing the Courts Back Under the Constitution” which supported Item No. 9 of his “21st Century Contract with America.”

As predicted by Andy Schlafly, if tyranny U.S. Supreme Court judges is allowed to continue, we will lose every issue we care about. But how to stop judicial activism?  Schlafly presented approaches often suggested to stem judicial activism but which don’t work: :

  • Appoint better judges.  Republicans have failed in the past.  Candidates are often chosen that have a limited paper trail so their confirmation doesn’t involve a nasty fight.
  • Amend the Constitution.  Isn’t the Constitution a document that has withstood the test of time? In the push to rewrite the Constitution, who will then interpret the new Constitution?
  • Religious liberty must be defended, but that won’t solve the problem.
  • Has this happened before?  In late 1850 pro-slavery Democrats (5 out of 9 justices owned slaves themselves) which led to the Dred Scot decision. The Republican Party was built on the opposition to Dred Scott, that it is tyranny for 5 people to establish law, going from an obscure, fringe party to an important political party.

Unfortunately law students are being indoctrinated into believing that Judicial supremacy is just and that it’s fine for the Supreme Court to write law instead of interpreting law in accordance with the Constitution.

Article 2: will cover “The Tyranny of Judicial Supremacy as Applicable to Religious Liberty.”

[Originally published at Illinois Review]