Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.
DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?
DeLay is wrong about the Schiavo case. I think the law was a bad law, but the trial judge applied it properly. I think the judge assessed the medical evidence incorrectly, but that is a matter of interpretation, not of judicial impropriety or denial of due process. There is nothing here with which to threaten this judge or the judicial system.
But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between "some recent episodes of courthouse violence" and judicial activism -- as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system.
Let us have a bit of sanity here. One of the glories of American democracy is the independence of the judiciary. The deference and reverence it enjoys are priceless assets. The Supreme Court is the only institution that could have ended the Bush-Gore fiasco of 2000 with the immediacy, finality and, yes, legitimacy that it did. (True, liberals, who for half a century employed judicial fiat to enact their political agenda, have been whining for five years about this particular judicial exercise. But the critical point is that, whine or not, the ruling was accepted as law.) Moreover, and more generally, judicial independence and supremacy are necessary checks on the tyranny of popular majorities.
Have that independence and supremacy been abused? Grossly. What other advanced democracy would radically legalize abortion by judicial decree rather than by democratic will expressed through legislatures or referendums? What sane democracy allows four unelected robed eminences in Massachusetts to revolutionize the very definition of marriage, the most ancient institution in society?
This is not just deeply undemocratic. It is politically crazy. Democracies work as stable social entities because when people are allowed to settle issues themselves by debate and ballot, they are infinitely more likely to accept the results when they lose. To deny them that participation is to risk instability and threaten social peace.
It was Ruth Bader Ginsburg who said that Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." Whenever such an obvious sociological truth is pointed out, proponents of judicial imperialism immediately resort to their trump card: Brown v. Board of Education and the courts' role in ending Jim Crow.
But Brown was different. The race cases were cases of a disenfranchised citizenry. The representative branches of government were legitimately superseded because they were not representative. Millions of blacks could not vote. Millions of blacks could not participate in civic life. The courts had to act to end this aberration and injustice, and, to their glory, they did.
And they have lived off that glory ever since. The prestige the courts inherited from Brown fueled their arrogant appropriation of legislative power in areas radically different and suffering no disenfranchisement -- abortion, gay rights, religion in the public square. For decades they have been creating law, citing emanations from penumbras of the Constitution visible only to their holinesses.
This is all true and deeply depressing. But the answer is not to assault the separation of powers. Certainly not to empower Congress to regulate judicial decision-making by retroactively removing lifetime appointees. The non-deranged way to correct the problem is to appoint a new generation of judges committed to judicial modesty.
Yet the recent eruptions of DeLay, Cornyn and some of their fellows may, like FDR's court-packing overreaching in 1937, have a salutary effect after all -- scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.