By Phyllis Schlafly,
September 1997 – The most important duty of the 105th Congress is to protect America from judicial usurpation and restore our constitutional balance of powers among the three branches of our government. This goal should take priority over everything else because the federal courts pose the number-one threat to our democratic process, as well as to conservative and pro-family goals, and because the Congress has the power to take many constructive steps that cannot be vetoed by President Clinton.
When a constitutional case is presented to the courts, judges make their decisions in one of two ways. They can look to the United States Constitution and see whether it authorizes or forbids the disputed action, or they can impose their own social views on us, dressed up with self-serving jargon. Unfortunately, personal opinions are what the Supreme Court has imposed in the areas of racial preferences and quotas, criminal procedures, pornography, forced busing, prayer and the Ten Commandments in public schools, internal security, and term limits.
The courts have invented new “rights’’ such as the right to abortion and to receive welfare payments, and have arbitrarily overturned the votes of the people in California, Colorado, Arizona, Arkansas, and Washington State who had the old-fashioned belief that they could exercise self-government. Although the Constitution grants “all legislative Powers” to Congress, the federal courts have set themselves up as a super-legislature and grabbed the authority to micro-manage schools, prisons, hiring standards, and legislative reapportionment.
In the latest outrage, a federal judge ruled that Penthouse magazine and other sexually explicit magazines and videos have a First Amendment right to be available in subsidized post exchanges on military bases. By the ruling in General Media Communications v. Perry (1997), the military is enjoined from obeying the Military Honor and Decency Act of1996, which forbade such materials on military bases.
In United States v. Virginia (1996), the Supreme Court ordered women admitted to Virginia Military Institute, an institution that had been constitutionally all-male for 150 years. The Court simply wrote Ruth Bader Ginsburg’s radical feminism into the law and even smeared as “close-minded” those who believe there are inherent differences between men and women.
In Romer v. Evans (1996), the Supreme Court overturned the majority of the people of Colorado who, by statewide referendum (Amendment 2), precluded localities from granting special status to homosexuals. Without any authority from the Constitution or citation of any applicable legal precedent, the Court ruled that Colorado’s Amendment 2 was totally without a rational basis and was “born of animosity” toward homosexuals. It would be more accurate to say that the Court’s decision was without a constitutional basis and was born of animosity toward traditional moral standards and the people who hold them sacred. Will the Court’s own animosity prevail when it considers whether other states must respect the Hawaii Supreme Court’s invention of the new “right” of same-sex marriages?
Also in the 1995-1996 term, the Court struck down a federal statute that required cable television operators to put their “patently offensive” pictures of sexual activities or organs on a separate channel that could be accessed only on a subscriber’s written request. Without any authority from the Constitution, the Court again perverted the First Amendment in order to protect pornography.
The arrogance of the Supreme Court justices reached its apogee in Planned Parenthood v. Casey (1992), when the Court linked its own legitimacy with abortion in a circular, macabre argument. Roe v. Wade (1973) was handed down without any authority from the Constitution, yet the Court in Casey insisted that Roe was cast in stone lest “the Court’s legitimacy be undermined.” In other words, to maintain the Court’s “legitimacy,” we are told an illegitimate decision can’t be overruled!
Taking their lead from the Supreme Court, lower federal courts have manifested their disdain for the popular will by arrogantly overturning the wishes of the majority of the voters expressed in statewide referenda. A single federal judge nullified California Proposition 187, which received five million votes in 1994 and would have prohibited giving taxpayer benefits to illegal aliens.
Another single federal judge nullified Proposition 209, the California Civil Rights Initiative to end affirmative action, which overwhelmingly passed in 1996. It is nonsense to call it unconstitutional when its text reads like it was copied from the 1964 Civil Rights Act. Judge Thelton Henderson, the Carter appointee and a former ACLU board member and civil rights litigator who rendered this decision, not only used his judicial power to overturn the wishes of 4.7 million Californians, but in a highly suspect procedure, he grabbed jurisdiction over this case away from another judge to whom it had been assigned.
In a statewide referendum in 1991, the voters in the state of Washington reaffirmed a state statute that prohibited anyone from “knowingly causing or aiding other persons in ending their lives.” In Compassion in Dying v. Washington in 1996, a federal appeals court overturned the vote of the people, invented a “right” to physician-assisted suicide, and smeared those who oppose this as “cruel.” In Quill v. Vacco (1996), another federal appeals court threw out the state of New York’s prohibition against assisted suicide. The Supreme Court has not yet decided these cases, but meanwhile one federal judge’s injunction has nullified enforcement.
WHAT CAN CONGRESS DO?
What are our remedies? Since law-abiding citizens can’t hold the life-tenured radical judges accountable, grassroots groups everywhere are planning on holding accountable every Senator and Congressman who fails to act to reign in the imperial judiciary. Here’s what we expect.
1. Senators should use their Article II “Advice and Consent” power to “just say no” to nominees unless they publicly pledge to abide by the words of the Constitution and statutes and the intent of their authors.
2. Congress should use Article III to limit the jurisdiction of the federal courts. This explicit power is given to Congress by the Constitution.
3. Congress should remove from the federal courts all jurisdiction over crimes that are already crimes under state law.
4. The Senate and House Judiciary Committees should hold extensive hearings on various proposals to stop the usurpation of power by the federal courts.
5. Congress should reassert its own investigative function and eliminate the special status the liberal American Bar Association has long enjoyed in evaluating court nominees.
6. Congress should let it be known that it takes its impeachment power seriously and intends to use it. 
