Democracy Under Assault
Theopolitics, Incivility and Violence on the Right

Michele Swenson

Federalist Society Assaults on the Independent Judiciary


The political right seized upon the plight of Terri Schiavo, in the words of Bill Kristol, editor of The Weekly Standard magazine, as an excuse to "rise up against our robed masters" and demand judges who are "respectful of democratic self-government...committed to a genuine constitutionalism."

Kristol suggested using the Schiavo case as a trigger for instituting the "nuclear option" in the drive for a Bush-dominated federal judiciary be dubbed "Terri's revolution." Other attempts by the right to gut the checks and balances provided by judicial oversight include:

· Paul Weyrich’s and Rep. Tom DeLay’s call for impeachment of "activist" judges.

· Robert Bork’s proposal to rescind parts of the Constitution, specifically, to enact constitutional amendments to eliminate judicial constitutional review of laws and to override judicial decisions by a simple legislative majority; and imposition of judicial term limits.

· Laws proposed to strip the courts of jurisdiction over certain issues include Sen. Jesse Helms 1980s proposal to remove school prayer cases from court oversight. A proposed plank of the 2004 Republican Platform calls for elimination of court jurisdiction over gay civil rights legislation.

Rightists like Focus on the Family’s public policy vice president Tom Minnery have seized upon Justice Sandra Day O’Connor’s notice of resignation as opportunity to call for significantly reduced judicial oversight and increased power of the legislature, unfettered by judicial interpretation of the Constitution or protection of minorities against temporary majorities. William Donohue, president of the Catholic League, advocates requiring a unanimous Supreme Court vote to overturn any law.


Six of George Bush’s first 11 court nominees were Federalist Society members, a group founded in 1982 and mentored by Robert Bork and Antonin Scalia for the purpose of saturating the judicial system with people wedded to their philosophy. Federalist Society members have advocated rolling back twentieth century law regarding the environment, civil rights gains, workplace health and safety, the minimum wage, telecommunications, welfare, social security, and more:

· Society members have opposed court decisions upholding gay civil rights as a curb on a state’s ability "to employ its ‘police power’ to protect public morals…"

·  Some challenge the constitutional discretion of Congress to spend for the "general welfare" as an "expropriation of state sovereign rights."

· The Court’s upholding of the Voting Rights Act has been scorned for permitting "enormous intrusions into state voting structures…"

· The Brady Act, requiring state background checks for gun purchases, is called yet another overreach, a violation of Tenth Amendment states’ rights.

· Some within the Federalist Society seek to categorize minimum wage law an unlawful government "taking" under the Fifth Amendment.

It is not surprising that the right has sought to disassociate Supreme Court nominee John Roberts from the Federalist Society.  Ironically, one of the starkest overrides of states' rights in modern times is Bush v. Gore, the Supreme Court decision to override the Florida State Supreme Court's decision to count all the votes in the 2000 presidential election. Reportedly, John Roberts played an active role in Florida on behalf of George W. Bush.