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December 2004   
Judicial Activism=Judicial Tyranny, Higher Courts Loaded With Judicial Activists By Phil Brennan


By: Phil Brennan

I don't want to pick a fight with Chief Justice William Rehnquist for whom I have great admiration, especially when he's gravely ill, but he just wrote something with which I cannot agree.

So here goes.

In his traditional year-end report on the federal courts Justice Rehnquist wrote that judges must be protected from political threats, including those from conservative Republicans who maintain that "judicial activists" should be impeached and removed from office.

"The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction," the chief justice wrote.

The public, the press and politicians are certainly free to criticize judges, Rehnquist added, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.

Fair enough, but what bothered me was his attitude that judicial activism deserved some kind of heavenly writ placing judicial opinions, no matter how wrong-headed, beyond reproach. What he seems to be saying is no matter what the public wants in any particular matter a judge's opinions prevail even when the opinions are based on nothing but the judges' personal far-left preferences instead of constitutional law.

Over the years we have had non-elected federal judges usurping the authority of elected local school boards on the most specious of grounds, involving themselves in the actual supervision of school districts. There's not a damn thing in the Constitution that confers such authority on their honors, but they get away with it nonetheless.

In Kansas the State Supreme Court has just ruled that the state legislature has failed to provide adequate funding for the state's public school system. and ordered it to come up with more money for the schools, or else..

Lawmakers were given until April 12 to fix the problem of insufficient funding or face court action but did not specify how much more money is needed to adequately fund schools..

"Its failure to act in the face of this opinion would require this court to direct action to be taken to carry out that responsibility," the court ruled.

"The Legislature, by its action or lack thereof in the 2005 session, will dictate what form our final remedy, if necessary, will take."

Their logic for this usurpation of the legislative power of the elected officials: The state's Constitution requires that the Legislature make "suitable provision" for financing education. The court ruled that, in commissioning a consultant's study on school finance, the Legislature defined suitable, then ignored the consultant's recommendations to increase funding.

Pardon me, but isn't that what the voters elected them to do - to decide what is suitable? If the public wants to spend more money, or for that matter less money, on schools isn't it up to their elected representatives to take care of the matter. Nobody elected the justices to decide how much funding is enough. Frankly, it's none of their damned business.

In recent weeks the nation has endured a raging controversy over the celebration of Christmas. In a nation where about 90 percent of the people are Christian, we have been treated to a spectacle of having hordes of lame-brained school and municipal officials taking a pick axe to our Constitutionally ordained right to practice our faith in the public square.

The anti-Christmas barbarian hordes hide their true aim -to drive Christians back into the catacombs - under the guise of protecting the doctrine of separation of church and state - a doctrine that does not exist in the United States Constitution or anywhere else but in the fevered minds of the almighty justices of the federal judiciary. They simply invented it, using the prohibition of establishing a national church to contradict the second part of the First Amendment: that Congress shall enact no laws prohibiting the free exercise of religion in or out of the public square.

So when did this miraculous wall of separation between church and state get built, and who built it. As David Limbaugh wrote in his extraordinary book "Persecution" the architect and builder was Justice Hugo Black who wrote in the majority opinion of Everson v. Board of Education that the "First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

Clearly, it was not the founding fathers who used the First Amendment to build the wall. It was Hugo Black.

This is judicial activism of the worst kind - activism based on nothing but the warped opinion of a Justice of the Supreme Court and a whole slew of out-of-control tyrants in black robes who have followed in his wake.

Black's opinion is fiction. It has no basis in the Constitution and his fellow justices and those who followed them know that. And they should be roundly condemned for not saying so in unmistakable terms and acting on that belief.

Yet as David Limbaugh points out, the Everson decision, in the words of Professor Daniel Dreisbach "laid the foundation" for later First Amendment cases involving released time, school prayer, and "the continuing controversy over religious expression and instruction in the public schools" and other lines of cases."

In his article "We the Judges’: How Judicial Activists Rewrite the Constitution" Congressional Correspondent David Brody wrote that "there is a real and tangible concern about what is being called 'judicial activism' Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says.

How did we get to this point and what can be done about it?" he asked, explaining that "In the beginning, our Constitution reads, 'We the people.' But the way the courts have been ruling recently, many legal scholars say it could very easily read 'We the judges.' "

He reports that Judge Robert Bork has said, "The problem is very grave because what you've done is take away democratic control of the culture."

Bork , who has led a campaign against judicial activism, believes that too many judges are making laws instead of interpreting them, and that is not what the Founding Fathers had in mind. He explained that "[The judges] are steadily enacting what you might call the liberal cultural agenda."

For example, the Supreme Court has ruled that Americans basically have a constitutional right to commit sodomy - a right judicial experts say can not be found anywhere in the Constitution.

Moreover, Brody notes that the one case that still has legal scholars scratching their heads is the decision 30 years ago to legalize abortion.

Of that atrocious opinion Bork said , "Fifty-eight pages: no legal argument in it. You learn all about the Egyptians practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are, and all of a sudden, bang, there's a right to abortion."

So what does Justice Rehnquist say is a remedy for this curse of judicial activism? Why simply challenge misguided rulings by appealing them a higher court. "The appellate process provides a remedy" for those who believe a judge has erred, he said.

He ignores the fact that those "higher" courts, including his own, are loaded with judicial activists.

Phil Brennan is a veteran journalist who writes for He is editor & publisher of Wednesday on the Web and was Washington columnist for National Review magazine in the 1960s. He also served as a staff aide for the House Republican Policy Committee and helped handle the Washington public relations operation for the Alaska Statehood Committee which won statehood for Alaska. He is also a trustee of the Lincoln Heritage Institute and a member of the Association of Former Intelligence Officers. Phil Brennan is a regular columnist for Ether Zone.