The Courthouse Crusade Against Government

Activist conservative judges are seeking to radically reinterpret the Constitution in ways that will drastically limit the powers of government.

The more radical elements of the anti-government movement face a serious problem. They would like to eliminate or drastically reduce many of our basic progressive social programs, like Social Security and Medicare; and they also want to curtail many of the federal government’s regulatory programs. But broad public support for such programs makes it difficult to attack them effectively through the legislative process. So some anti-government activists have turned to the federal courts in an effort to construct a constitutional assault on these programs. Conservative and libertarian judges and legal scholars are promoting a radical reinterpretation of the Constitution that would severely constrain the powers of the federal government. They are attempting a legal end-run around the democratic process to impose their small government views on all Americans.

Anti-Government Extremism in the Courts

Judge Janice Rogers Brown could serve as the poster-child for the anti-government movement’s efforts in the third branch of government: the judiciary. Now a member of the United States Court of Appeals for the District of Columbia, Brown is a jurist intent on radically reinterpreting the Constitution in order to undermine the power of the federal government. For example, she has asserted that the states should not be subject to the Bill of Rights – a view that most legal scholars see as virtually indefensible. In the past, she has also argued for overturning established precedents in cases involving the government's authority to regulate corporations and supported the idea of striking down health and safety laws that might infringe on the rights of business. Even more strangely, she has also attacked the 1937 decisions by the Supreme Court that upheld much of the legislation of the New Deal, calling them a "disaster" that marked "the triumph of our socialist revolution."

Brown’s legal opinions are largely informed by a deep and abiding contempt for government and its role in modern society. She has commented that “where government advances – and it advances relentlessly – freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....”1 She expanded on these ultraconservative views in a speech she gave in 2000 to the Federalist Society, a leading conservative legal group:

Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption: the loss of civility and the triumph of deceit. The result is a debased, debauched culture, which finds moral depravity entertaining and virtue contemptible.2

It is sobering that President Bush believed that someone with such a radical and paranoid view of government would be qualified to render decisions in one of the highest courts in this country – one often considered a stepping stone to the Supreme Court. Not surprisingly, over 270 law professors opposed the nomination of Judge Brown to the federal bench. Several Democratic senators were outraged enough by Brown's nomination to organize a successful filibuster to block her appointment. However, in 2005, the Senate Republicans threatened the “nuclear option” – to take away the Democrats’ right to filibuster – if they did not agree to procedures to approve several Bush appointees to the bench, including Brown. The Democrats were forced to capitulate in the face of this outrageous tactic and Brown was appointed. She was even talked about as a possible appointee to the Supreme Court. The case of Brown shows just how far conservative administrations are willing to go to put people in the federal courts who are loyal soldiers in the war on government.

Unfortunately, Judge Brown is but one example of Bush's appointment of conservative and libertarian judges with an anti-government political agenda. Another is former Alabama Attorney General William Pryor. One legal scholar described Pryor as a man who "was against almost every progressive reform of the past half-century."3 The Atlanta Journal-Constitution editorialized that Pryor was "the perfect Christian right extremist." He was, for example, the only attorney general in the 50 states who argued for striking down the Violence Against Women Act maintaining that it was a problem that did not have any national impact. He testified in Congress urging the repeal of provisions of the Voting Rights Act. He filed a brief in support of Nevada’s effort to block remedies for violations of the Family and Medical Leave Act. He also argued against federal enforcement of civil rights and worker protection laws. And again he was the only state Attorney General who challenged significant portions of the Clean Water Act and the Endangered Species Act. He also filed a brief with the Supreme Court, arguing that the Constitution's Commerce Clause doesn't give Congress the authority to protect endangered species. Clearly Pryor has a deep hostility toward the federal government and its regulatory efforts to protect, women, minorities, and the environment.

As with Judge Brown, several Democratic senators were appalled by Pryor’s extremist legal views and organized a filibuster to block his appointment. But like Brown, Pryor was eventually elevated to the bench when the Republicans threatened to revoke the Democrats’ right to filibuster. Pryor and Brown were merely two of over a hundred nominees to federal district and appellate courts – many of whom also had ultra-conservative legal views – that were approved in the first Bush administration alone.

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