Dec
15
Reigning in the Radical Liberal Judiciary
Who Guards the Guardians?
In his book The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault
Justice Stephen Breyer (liberal activist)
“But with this book, I hope not only to awaken Americans to the dangers of the tyranny of tolerance but also to show how we can defeat it at last. If we succeed in defeating the tyranny of tolerance — if we restore the judiciary as the ‘least dangerous’ branch of government as envisioned by the Founding Fathers — we will wrest control of our country and our society from judicial philosopher kings and advance the cause of liberty here at home. If we fail….”
So, what can we do? How can we free the judicial system of the radical liberal stranglehold and begin restoring those liberties?
“Dire as the situation may seem, I also remind myself of Ronald Reagan’s simple prescription for the cold war: We win, they lose. Reagan prevailed against the evil empire of the Soviet Union the same way the Founders prevailed against the High Court of Parliament — by not giving up….
If, as the Declaration of Independence states, government derives its just powers from the consent of the governed, it follows that a judiciary that repeatedly strips the people of the right to decide issues of social policy, that approves religious persecution, that embraces taxation without representation, and that approves discrimination in favor of some — all without any textual basis in the Constitution, and even in opposition to what the text plainly states — is rightly subject to censure. The Declaration laid it down that governments are ordained to secure the unalienable rights of life, liberty, and the pursuit of happiness, and that when ‘any form of government becomes destructive of these ends,’ it is the right of the people ‘to alter or abolish it.’ The courts have become the willing instruments of a new tyranny — the tyranny of tolerance — and their departure from the proper, limited role of the judiciary must be remedied.
But how to control an institution that itself decides what is constitutional and what is not, that says what the law is? Who guards the guards?
FDR
President Franklin Roosevelt recognized this problem when he confronted the ‘conservative’ Supreme Court of his day. In a March 1937 radio address he said, ‘We cannot rely on an amendment as the immediate or only answer to our present difficulties…. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment like the rest of the Constitution is what the Justices say it is rather than what its framers or you might hope it is.'”
(Of course, this is one of the few things either Judge Dierker or I would agree with FDR on.)
This is precisely the problem that I’ve been concerned with, as I’m sure many of you have, as well. It’s similar to expecting Congress to pass laws that reduce and restrict their own powers and privileges.
Dierker continues:
“In any case, the fact is that it is extremely difficult to amend the Constitution. That is why Supreme Court decisions have been reversed so rarely by constitutional amendments: The Dred Scott case was reversed by the Thirteenth, Fourteenth, and Fifteenth Amendments (made possible only by the bloody Civil War itself), and the Court’s decision to declare the federal income tax unconstitutional (Pollock v. Farmers Home & Trust Co.) was reversed by the Sixteenth Amendment. So, although there are intriguing proposals for amendments to rein in the judiciary, we cannot realistically regard amending the Constitution as a tool for fixing the problem.
No, the goal here is not to change the Constitution. That’s what liberals do by their rewrite jobs. The goal is to reestablish the Constitution’s true meaning and put the judiciary back in its proper place.”
Remember, this is being proposed by a sitting federal Circuit Court judge — one that apparently does not let power go to his head, but recognizes that the limitations placed on the Judicial Branch in the Constitution were put there for the good of the People.
“Fortunately, we have weapons at our disposal to do so. The three most important weapons are choosing judges who reject the tyranny of tolerance, using statutes to limit the courts’ jurisdiction, and, in the last ditch, defiance — just as the Founders defied Parliament, so must the elected, coequal branches of the federal government defy the dictatorship of the judiciary, in defense of the same principles fought for in 1776.”
The above is from the conclusion to the book, but Dierker does go into the three “weapons” — Personnel, Jurisdiction, Defiance — in more detail. Nothing really profound or surprising, mind you, but wise counsel, nonetheless. We just need to prudently & strategically use the weapons — I prefer “tools” — at our disposal and persevere. We won’t win every battle, and things will never be “perfect”, but we can, bit by bit, rein in the radical liberals and restore some sanity to the American judiciary.
P.S. Yes, I know I used the wrong spelling in the title. It was a play on words: reign = to predominate or exercise sovereign power; rein = to restrain or control.
