Book Review The Supremacists: Judicial Tyranny and How to Stop It by Phyllis Schlafly

When I began reading The Supremacists: The Tyranny of Judges and How to Stop it, it was with a somewhat skeptical eye. I am conservative, but I have not seen much in the way of rational argument against judicial tyranny either in the media or in books. There is plenty of rant and conspiracy theory, but not much hard evidence or compelling argument. This has definitely changed for the better. Phyllis Schlafly's work is both scholarly and convincing. Phyllis McAlpine Stewart Schlafly was born in St. Louis, Missouri on August 15, 1924 [Wikipedia 2004]. She graduated Phi Beta Kappa, Pi Sigma Alpha, and Final Honors from Washington University, receiving her B.A. in 1944. In 1945 she graduated from Harvard with an M.A. in Political Science. The Washington University Law School awarded her a J.D. in 1978. She is admitted to practice law in Missouri, Illinois, the District of Columbia, and the United States Supreme Court. She has received numerous awards including; an Honorary LL.D. from Niagara University, an Honorary Doctor of Christian Letters from Franciscan University of Steubenville, and others from Freedom Foundation of Valley Forge, National Conference of Christians and Jews, Sons of the Revolution, and Sons of the American Revolution [Eagle Forum 2004]. Her political life has been exciting and momentous. Born at the height of the Flapper era of the 1920's, a time when women were rejecting Victorian era social constraints, it might seem surprising that she is such a strong advocate for conservative causes. However, raised Catholic, she is a prominent conservative political activist. She entered the political realm as campaign manager for Republican Congressman, Claude I. Bakewell of St. Louis, Missouri [Microsoft 2004]. She has been a delegate or alternate in nine Republican National Conventions, between 1956 and 2000 and has attended every one since 1952. She ran for Congress in 1952 and 1970, but was defeated. During the 1970s and 1980s, she successfully opposed the Equal Rights Amendment on the basis that if passed, women would be required to serve in combat, the legal rights of wives would be taken away and that it would negatively impact family life [Eagle Forum 2004]. She has submitted numerous Amicus Curiae (friend of the court briefs) for the United States Supreme Court. She was appointed by Ronald Reagan and served with Chief Justice Warren Burger on

the Commission on the Bicentennial of the United States Constitution for six years, 1985-1991 and on the Administration Conference of the United States for four years. She served on the Illinois Committee on the Status of Women for 10 years. Her testimony is among the most coveted for a variety of important issues. She has testified before more than 50 congressional and state legislatures on topics including: constitutional issues, education, strategic defense, foreign policy, electronic privacy and family issues [Eagle Forum 2004]. She has written or edited 20 books, lectured and debated at more than 500 colleges and universities, as well as written a weekly newsletter, The Phyllis Schlafly Report, for more than 38 years. She regularly appears on television and radio shows. Her radio commentaries have been on the air since 1983 and her talk show on education, since 1989. She is the mother of six children and was named Illinois Mother of the Year in 1992 [Eagle Forum 2004]. These are just some the highlights of a long and illustrious life that is strewn with pearls of achievement. Phyllis Schlafly is one of the most influential women of recent history. In the foreword, these questions are asked, "What is the future of self-government in America? Will we continue to be the world's greatest self-governing people, a land of liberty and of the prosperity that flows from freedom? Or will we, like so many others, allow ourselves to be ruled by a small band of elitists who pretend to be wiser than the rest of us and force their policies upon us?" [Schlafly 2004]. This book shows that we are definitely headed down the second road and that if we stand idly by, our ability to self-govern will be seriously diminished, if not removed entirely, by judicial activists. It takes the reader on a tour de force of acts of activism by the highest courts in the land. Separate chapters show how the court has imposed its will on the people. The author details the history of judicial activism, how it grew to where we find it today and how it can be stopped. "The United States Constitution did not create judicial supremacy or consign us to be ruled by a judicial oligarchy." [Schlafly 2004]. The author explains that the United States Constitution gives "all" legislative powers to the Congress and NONE to the Judiciary and provides the reader with a list of instances of judicial activism where judicial supremacists have legislated from the bench, including: 3

censoring the Pledge, changing the definition of marriage, banning the acknowledgment of God in public schools, imposing taxes, rewriting laws of criminal procedure, rewriting election laws, inventing rights, overturning laws that were properly voted into existence by referenda, micromanagement of schools, prisons, and legislative reapportionment. In contrast to the activism of the current judiciary, the author says that the proper role of the judiciary, in the case of trial judges, is in resolving disputes under the law; in the case of appellate courts, it is in determining if the law was applied properly. She discusses whether or not the Constitution is a living, evolving document, pointing out that these are terms that give activist judges the ability to substitute any meaning that they like while, ostensibly, 'interpreting' the constitution. Phyllis Schlafly takes the controversial issue of God being systematically eliminated from public life by activist judges head on in the book, for example, the Pledge of Allegiance. The Pledge has been part of American culture for decades, but it is now under assault. She tells how in June, 2002 in Newdow v. U.S. Congress, the Ninth U.S. Circuit Court of Appeals ruled, 2 to 1, to ban the Pledge from public schools on the basis of its use of the words, "under God" and how a year later, in March 2003, the court took the further step of denying a rehearing, en banc (with full judiciary authority). She then goes on to show where judges acted on the Ten Commandments and prayer in school in a similar activist manner, thereby imposing their personal views on society. On the subject of marriage, the author tells the reader of many instances where supremacists have assaulted the institution of marriage. Beginning with a decision by the Hawaii state Supreme Court in 1993 ruling that the denial of marriage licenses to homosexual couples was discriminatory and unconstitutional and culminating with the Massachusetts ruling, 4-3, mandating same-sex marriage licenses. She does a good job of explaining why this is not a civil rights issue, an argument that can be summed up by her statement, that "Gays can already get marriage licenses on exactly the same basis as anyone else." [Schlafly 2004]. According to the author, judges have even begun questioning the sovereignty of the United States. In many decisions, Justices Breyer and Kennedy have begun looking to foreign governments for 4

direction in their decisions, thus threatening our sovereignty (Knight v. Florida, 1999 and Lawrence v. Texas, 2003). This idea of international law is subjected to some scrutiny. As regards pornography and judicial activism, the author documents case after case where the judges have misapplied the First Amendment to the detriment of the people. She points out the fact that the Congress and not the Judiciary holds the keys on this issue, stating that it is only the Congress who can prevent the Judiciary from having the power to overturn anti-porn legislation as they have done so many times in recent days vis a vis COPA (Childhood Online Protection Act). The author also covers abortion, gender-neutrality, and stereotypes. She exposes the court's record on these issues and particularly the Justices positions on them. She tells how Justice Ginsburg has feminist ties to NOW and other activist organizations. She is neither conservative nor liberal in taking on the Justices regarding this issue either, taking the time to show Justice O'Connor's feminist viewpoint as well. In other books, such as "Feminist Fantasies", the author has been much stronger in expressing her views. This is perhaps the weakest part of the book - the author gets sidetracked on issues outside of feminism and risks losing the reader's attention. Perhaps the strongest indictment of the American judiciary comes in the section of the book on the handicapping of law enforcement. Escobedo v. State of Illinois (1964), Miranda v. Arizona (1966), and U.S. v. Mendoza (2004) are cited as cases where the judiciary showed a disregard for the safety of the public by limiting the ability of law enforcement to provide that safety. Judges have also restricted criticism of the judiciary so that they could continue to make such rulings, all in the name of protecting the 'rights' of individuals. She also explains that the courts have a history of opposing and impeding capital punishment, not on the basis of the Constitution, but on polling and evolving standards. Any modern reader who survived the Bush v. Gore debacle in the state of Florida, 2000, has a new appreciation for the role of the judiciary in elections. The author covers the subject and reminds the reader that the ballots had been counted, and recounted according to pre-election procedures. Both parties had approved those procedures. That Al Gore lost his challenge to the election in trial 5

court and never provided any evidence of fraud or misconduct. She relates how the Florida Supreme Court seized on the idea that a different method of recounting ballots might have had a different result and then ordered their own strange method of recount. While Bush v. Gore overshadows any other example of judicial activism related to election law, the author provides another, the California recall of 2003. This episode is much easier to forget, but very telling in its own right. The author spells it out for the reader The Ninth Circuit U.S. Court of Appeals ruled 3-0 against the will of the people of the State of California and that the recall of Gray Davis must be postponed until a more accurate voting system could be delivered. She explains that there were no known problems with Californian's existing system and no evidence that any proposed system would be more accurate. Judicial imposition of taxes is a hot topic, although it is given little real estate in the book. The author describes Jenkins v. Missouri (1985) as an example where the judiciary acted in the name of education in imposing taxes. Taxes are a sore spot historically for Americans; it is a primary reason for our bid for independence. They are probably why the legislature that is elected to represent the people handles taxation. The author quotes James Madison, from Federalist 48, "The legislative branch alone has access to the pockets of the people. The author asserts that judicial supremacy has its roots in the Marbury v. Madison (1803) decision. Although the case was relatively unremarkable, the written decision makes it significant. She quotes the sentence that is cited most commonly, given by Chief Justice Marshall, "It is emphatically the province and duty of the judicial department to say what the law is." She agrees that the Marbury v. Madison case was judged correctly, stating that, "If a law is clearly unconstitutional, the courts should not enforce it." She continues, "Judicial review is a long, long way from the judicial supremacy we suffer from today." [Schlafly 2004]. The Marbury v. Madison decision is constantly misrepresented as the precedent for judicial activism. If Marbury v. Madison is the root, then the Warren Court is the fertilizer. The author tells how the Chief Justice Earl Warren, with no judicial experience, was appointed as a payoff for delivering the 6

delegate votes of the State of California for Dwight Eisenhower. She further discusses many of the instances of judicial activism that the Warren Court participated in, and how this court, more than any other, embodies the activist ideal. Phyllis Schlafly concludes her book by giving the reader a list of 10 things that can be done to stop judicial supremacists: 1. Reform Senate Rules Change the filibuster rules to be less obstructive. 2. Legislate Exceptions to Court Jurisdiction Congress has the ability to limit what types of cases the courts are allowed to hear and should use it. 3. Stop Foreign Interference - Courts should be prohibited from relying on foreign laws, administrative rules or court decision. 4. Save Self-Government - Congress should take away the power of judges to issue injunctions to overturn referenda. 5. Stop Judicial Taxation - Congress should prohibit judges from ordering any taxation under any circumstance. 6. End the Power of a Single Judge - A 2/3 majority should be required to declare a law unconstitutional. 7. Removal is an Option - Congress has the right of impeachment and that they should use it in the case of rogue judges. 8. Stop Judicial Micromanagement - Congress should add a provision to the law that limits judiciary involvement to no more than a single year's involvement of the court. 9. Cut Off Attorney's Fees - Many special interest groups are funded by attorney fees. 10. The Power of Congressional Investigations - Congressional should hold hearings on proposals to "stop the usurpation of power by the federal courts." The Supremacists, is an important work in my opinion for far too long the judiciary has been operating outside of its jurisdiction (as defined in Article 3 of the United States Constitution). Alexander Hamilton, in The Federalist Number 78, put it this way, The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; In case Hamilton's point is missed, the footnote he added is telling, The celebrated Montesquieu, speaking of them, says 'Of the three powers above mentioned, the judiciary is next to 7

nothing' -- Spirit of Laws. --Publius [Hamilton, 1787]. Judicial activism is unconstitutional and Phyllis Schlafly has proven this point beyond a shadow of a doubt in this book. She has documented a host of Supreme cases where judges have taken lawmaking into their own hands without regard for the law of the land or the will of the people. She has done more than merely prove the point and has taken it a step further and proposed a remedy, as well. The book is well written and is packed with facts and information. It is engaging and upbeat. The clear message, given by the book, is that, we, the people have the power to restrain the judiciary in their blatant attempts to grab power. This book deserves attention and it could not have been written at a more critical moment in our history, coming as it does on the heels of the recent decision of the Massachusetts Supreme Court to redefine our nation's most sacred institution of marriage with an utter disregard of the law and of the public will. The author's work shows her passion for her positions, as well as, an eye for detail. The book is extremely well sourced, including a Table of Cases that lists all of the cases, more than a hundred, that are quoted or analyzed in the book. In addition, there is an extensive notes section and thorough index. Graphically, the book is quite well designed. It is visually appealing and easy to read. It is typeset in Twombly's Caslon (Adobe), based on the typefaces cut by William Caslon of London in 1730, the book even has a classic, refined feel to it. Judicial activism is alive and well. It has taken hold of the highest court in the land. Phyllis Schlafly is a voice of reason in a chorus of apathy and denial. She has shown their activism for what it is and she has given a plan for how to deal with it. She has treated an amazingly complex subject with a clear and precise voice that any reasonably educated person should be able to understand easily. I highly recommend this book.

Bibliography Eagle Forum. (2004). Phyllis Schlafly. [Online webpage]. Eagle Forum, 2004. Available http://www.eagleforum.org/misc/bio.html Hamilton, Alexander. (1787). The Federalist: Number 78. Great Books of the Western World #43. Chicago: The University of Chicago, 1952: 230. Microsoft Encarta. (2004). Distinguished Women of Past and Present: Phyllis Schlafly. [Online webpage]. DistinguishedWomen.com, 2004. Available http://www.distinguishedwomen.com/biographies/schlafly.html Schlafly, Phyllis. (2004). The Supremacists: The Tyranny of Judges and How to Stop It. Dallas: Spence Publishing Company, 2004: vii, 3, 42, 98. Wikipedia. (2004). Phyllis Schlafly. [Online webpage]. Wikipedia, the free encyclopedia, 2004. Available http://en.wikipedia.org/wiki/Phyllis_Schlafly