ENDEAVOUR FORUM NEWSLETTER No. 120, NOVEMBER 2004
BOOKSHELF
Reviewed by Charles Francis
“The Supremacists” 
by Phyllis Schlafly. Spence Publishing Company, Dallas, 2004.
Available from AD 2000 Books, Price $35. Ph: (03) 9326 5757.
Reviewed by Charles Francis, AM, QC, RFD.
The latter years of the 19th century and the first half of the 20th century was the golden age of democracy both in Australia and the United States. For that, inter alia, we had to thank the very clear principle of separation of powers set out in our respective Constitutions with their appropriate checks and balances. Even more important was the fact that at that time this principle was properly understood by the legislature, by the executive, and even more important, by the judiciary.
In her admirable book “The Supremacists” - subtitled “The tyranny of judges and how to stop it” Phyllis Schlafly has traced out the gradual erosion of democracy in the United States in the last fifty years by an increasingly brazen judicial supremacy. The judiciary has usurped powers never given to it by the Constitution. It now dictates fundamental social policy, imposes taxes, manages schools and prisons and orchestrates elections. In brief, America has exchanged the rule of law for the rule of judges.
In its present form judicial supremacy emerged with the appointment of Earl Warren as Chief Justice in 1953. Although Warren had been Attorney General of California (1939- 43) and Governor (1943-53) he had had no judicial experience, seems to have had no understanding of the principle of the separation of powers, and from the moment of his appointment appears to have acted as a politician rather than a judge.
Warren overturned established laws about criminal procedures, prayer in schools, internal security, obscenity and legislative reapportionments. As Phyllis Schlafly points out, not only the public, but also the legal profession spoke out strongly against what was happening, and in 1957 the American Bar Association was presented with a stinging criticism of some fifteen decisions in which the Warren Court had ruled in favour of communists against US internal security. These decisions represented a very serious assault on the US internal security. Despite strong criticism the establishment of judicial supremacy continued relentlessly.
Some, but not all, of Warren’s brother judges were obviously uncomfortable with what was occurring. In 1964, in a dissenting judgment, Justice Harlan pointed out that when in the name of constitutional interpretation the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes for the proper amending process its own view of what should be so.
The judiciary also began its assault on American traditional religious belief in God, justifying it by an entirely new interpretation of the Establishment clause of the First Amendment. It is nonsense to suggest, as the courts then did, that such phrases as “In God we trust” tend to establish a religion in America or tend to suppress anyone’s exercise or non-exercise of religion. Yet the Ninth Circuit US Court of Appeals on this basis banned the pledge of allegiance from schools because of its words “under God”.
In many parts of the United States the Ten Commandments are on public display, but the lawyers of the American Civil Liberties Union are now making a fortune from litigation in which the courts are holding such displays to be illegal, demanding their removal and awarding costs against the offending body.
In Chapter 5 of “The Supremacists” entitled (and rightly) “Judges Promote Pornography”, Phyllis Schlafly says judges are directly to blame for allowing a torrent of obscenity to engulf the movies, television, the theatre, books and even classroom curricula. This was achieved by an entirely new interpretation of the First Amendment’s speech clause, which had been designed to protect freedom of political speech. The Court suddenly discovered in the Amendment that pornography and a wide variety of other assaults on decency were to be elevated to a First Amendment right. The obscenity dealers were not disappointed. From 1966 to 1970 the Warren Court handed down a series of thirty-four decisions that turned the law of obscenity upside down.
The ultimate judicial arrogance and activism was the majority decision in Roe v Wade and Doe v Bolton, which found in the “penumbra” of the Constitution that a woman had a virtually unrestricted right to abortion during the entire nine months of her pregnancy provided it was deemed medically necessary to preserve her life or health, but all that was needed was a doctor who agreed to perform the abortion.
Abortion was a matter very much within the legislative purview of the States, not the Supreme Court. In his dissenting judgment Justice Byron White described Roe v Wade as an exercise of raw judicial power. He rightly said he found “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right”. It might well be said of the majority judges (as was said of Sandra Day O’Connor on her recent retirement) they “wrought more havoc upon our nation than our foreign enemies ever have”.
In subsequent chapters, Phyllis Schlafly points out how judges fostered feminism, handicapped law enforcement, interfered with elections and imposed taxes. Thus the judiciary exercised political powers never given to it by the Constitution, nor by subsequent legislation.
In her analysis of what has occurred in the United States, Phyllis Schlafly pulls no punches and is blunt in her criticism of the US judiciary with its “elitist” liberal agenda. She demonstrates a remarkable ability to deal with and explain complex issues in simple terms so that what is happening in America can be readily understood by the general public.
In her final chapter, Phyllis Schlafly sets out how to stop judicial supremacy. Primarily it needs to be expunged by using the checks and balances built into the American Constitution. In particular the Senate must reform its rules so that liberals are not able to defeat constitutionalist nominees to the judiciary.
In a full reform program it is vital that Congress stands up to the Supremacists. Making outrageous rulings that have no basis in the Constitution should be grounds for impeachment and Congress should let it be known that it takes its impeachment power seriously and intends to use it.
Although “The Supremacists” is solely concerned with the United States, it is important that it be read in Australia. We are encountering many of the same problems and our judiciary is increasingly determining what are basically political questions (properly to be determined only by our legislatures) such as the question of what constitutes a marriage. “The Supremacists” is easy and excellent reading, and is strongly commended to all persons who are concerned with the future of Australian democracy.
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