by Evie Blad
Focus on the Family
August 9, 2004


Through her new book, 'The Supremacists," Phyllis Schlafly is challenging
Americans to thoughtfully address the issue of judicial supremacy.

Judicial supremacy has rapidly permeated every corner of the American
legal system. From gay marriage to abortion rights to the purging of
public acknowledgements of God, one can barely pick up the morning
newspaper without seeing the impact of judges who unconstitutionally
create law from the bench.

Renowned author and outspoken political activist Phyllis Schlafly is so
incensed by this trend, she's made it the subject of her newest book, "The
Supremacists."

Schlafly is best known for leading the pro-family movement in its 10-year
battle against the Equal Rights Amendment. In 1972, she founded the Eagle
Forum as a national volunteer organization that campaigns for conservative
values. Former President Reagan called Schlafly's work "an example to all
those who would struggle for an America that is prosperous and free."
In a recent interview with CitizenLink, Schlafly discussed the problem of
judicial supremacy, its impact on our culture and why Christians should
view it as a primary area of concern.


Q. In your new book, you highlight the trend of judicial supremacy: judges
essentially creating legislation from the bench. Judges have defended
these actions by claiming a responsibility of judicial review. What is the
difference between judicial review and judicial supremacy?

A. If a law is clearly unconstitutional, then it is the job of the courts
to declare it so. But it is not the job of the court to rewrite the law,
to create rights or to make policy decisions that would be properly made
by the legislature.

Do you think Americans are aware of how extensive judicial supremacy is
becoming?

Many are aware but they feel powerless. Most of the judges have life
tenure, and the people feel that they can't do anything about it.
My book ,"The Supremacists", is designed to show people what the problem
is in common sense language to show them that the founding fathers in
their wisdom gave us a remedy in that congress has the constitutional
authority to decide what cases the federal courts can hear and not hear
and that is the principle remedy.

Should the current state of the judicial system be a key influence in the
way that people vote in the upcoming election?

I think it is the most important issue. And yes, I do think it should
influence them. There are two reasons. The first reason is that the man
who is elected president in November will probably have the opportunity to
make several, perhaps even four, Supreme Court appointments. So it is very
important to elect one who believes in constitutional judges as opposed to
those who believe in a living and evolving document that they can
interpret according to their own social preferences.

The other reason is that it seems to be clear that some of the candidates
are for same-sex marriage and are for taking God out of the Pledge of
Allegiance. But they know that opinion isn't popular and they don't want
to say so. So they take a position that leaves it all up to the courts and
leaves it up to the judges. Now, these are not decisions that judges
should make, they are decisions that should be made by Congress and the
state legislature. So I think that if a candidate takes the position of
support of judicial supremacy, he is really taking the position for the
very radical, left-wing decisions that have been coming out and there may
be more in the future.

How can we be assured that a presidential candidate will appoint good
judges? Is it really a partisan issue?

Well, we don't know because there have been a lot of mistakes made.
Somebody one time asked Dwight Eisenhower if he'd made any mistakes as
president and he said, "Yes, two, and they are both sitting on the Supreme
Court." So, mistakes can be made. But I think it's very important and I
agree with what President Bush said: We are not going to stand for
activist judges who are legislating from the bench and remaking our
culture by court order.

Confronting judicial supremacy seems to be largely a conservative issue.
How would you respond to those who claim that President Bush is in office
because of judicial supremacy?

You are referring to the Bush v. Gore Supreme Court case. There has been a
lot of false propaganda about that case. The judicial supremacists were
the Florida Supreme Court judges who decided to rewrite the rules of the
election after the election took place. The Constitution did not give the
election and the conduct of it to judges; it gave it to the legislature.
And the Florida Supreme Court grabbed control of the issue and they tried
to rewrite the rules of the election after it had happened.

Now, people can argue about the best way to run an election. But once an
election has been run, you've got to stick to the rules you had
beforehand. We are fortunate that the Supreme Court was able to slap down
the supremacists on the Florida Supreme Court to make sure that they stuck
to the original rules. I might point out that all of the post-election
counts that were made by the media all confirmed that George Bush won
Florida and won the election.

So the federal Supreme Court had to step in to end the judicial supremacy
that was occurring on the state level?
That is correct.

Why have we seen such a multitude of cases regarding public
acknowledgement of God, such as Ten Commandments monuments and the recent
ACLU case to remove the cross from the L.A. seal?

I think the American people are completely against what the judges who
make these decisions are doing. But the ACLU is part of an organized
effort to remove the acknowledgement of God from every public place,
public courthouse, public park and public school. They have joined in
cases all over the country against the Pledge of Allegiance, Ten
Commandments monuments and crosses. Every time they win one of these
cases, they can collect attorney's fees, so it's also a fundraising tactic
for the ACLU. They find these cases very popular, and then you have a lot
of activist judges who are really liberal and who feel that they can
impose their liberal views on the people regardless of what the people
want.

Many think that we do need an active judiciary to protect our civil
rights. What do you make of that?

The historical fact is that the supremacist decisions have been very
anti-minority. The famous case, the Dred Scott case, said that blacks have
no rights that white men need to respect. It declared unconstitutional the
congressional law that banned slavery in the territories. It was a
terrible decision. The segregation decision was also a Supreme Court
decision. The minorities attain their rights through the 13th, 14th and
15th amendments, which were designed to overturn these bad Supreme Court
decisions, and also through the civil rights law of 1964, the Voting
Rights Act and other civil rights laws. Minorities got recognition of
their civil rights through constitutional amendments and through statutes.
The courts have not been their friends.

How would you refute the commonly stated argument that public monuments
and documents acknowledging God are unconstitutional?

There is no basis for that opinion. The First Amendment says that
"Congress shall make no law respecting the establishment of a religion."

It is not establishing a religion to erect a Ten Commandments monument.
The American people want this; there is a Ten Commandments depiction in
the walls of the Supreme Court. It is the basis of our law in this
country, and there is nothing in the Constitution that can reasonably
justify banning the Ten Commandments.

What has happened is the activist judges, the judges who believe they can
remake our law, have used the First Amendment to deny our right to
acknowledge God at the same time that they have given the green light to
pornographers. And it appears through court decisions that the first
amendment is only helpful to pornographers but it isn't helpful to the
rest of us.

Largely due to your efforts, the Equal Rights Amendment failed to be added
to our constitution. However, many ERAs were implemented on the state
level. Do you think the push for same sex marriage that we are seeing
today grew out of the ERA movement?

No, I don't think that it grew out of the ERA movement. But there is a
close political alliance between the feminists and the gays. And the Equal
Rights Amendment would have given us same-sex marriage a long time ago. As
a matter of fact, the Massachusetts judges who ruled in favor of same-sex
marriage did cite the Massachusetts state ERA as one of their arguments
for why the state should grant same-sex marriage licenses.
How do you feel about the Federal Marriage Amendment?

I support a federal marriage amendment. We have had difficulty in agreeing
on the text. When you talk about constitutions or laws, the text is very
important. But I would support any way of defending marriage. I think the
attack on marriage is the fundamental issue of our time.

I do think that we can walk and chew gum at the same time. We should be
able to support a marriage amendment at the same time as we support the
laws which would take away from the federal courts the power to require
the other 49 states to accept Massachusetts same-sex marriage licenses.
The U.S. House of Representatives did pass a bill . . . (the Marriage
Protection Act) which would withdraw jurisdiction over any case which
would request the judge to force any state to recognize Massachusetts
same-sex marriage licenses. I am hopeful that the Senate will pass it and
sign it. I think that it is the best and the speediest way to defend
marriage. It will not do everything but it will be a giant step towards
curbing the courts.

Whether you are talking about marriage or the acknowledgement of God, the
Pledge of Allegiance, the Ten Commandments, pornography, the citing of
foreign sources as a basis of a court decision, the judges are the
problem. The judges have convinced themselves that they should rule the
rest of us. That is not our form of government. If we believe in a
democratic form of government, policy decisions must be made by our
elected representatives because we can fire them if they don't do what we
want them to do.

Six Supreme Court justices have cited foreign sources in their rulings.
Justice Ginsberg said that legal perspectives are shifting as justices
"become more open to comparative and international law perspectives." Is
this new perspective alarming?

It is alarming because they all took oaths to defend and uphold the U.S.
Constitution. America has more freedom that any country in the world. We
do not need to get advice from any other country. The other countries
simply cannot understand the kind of constitutional protections we have
here in America. I think the citing of a foreign source in a Supreme Court
decision is grounds for impeachment.

In the Lawrence v. Texas case (which struck down a state statute against
sodomy), the court was unable to find anything in the U.S. Constitution to
justify the decision. So the court called on the British Parliament, a
European court of human rights and a brief filed by a U.N. high
commissioner. I find that totally appalling.

So, by tolerating this behavior, we are essentially sacrificing our
sovereignty?

If we accept the decisions of some foreign courts as binding or even
influential in American law, we are.

Many Christians don't consider the impact of judicial supremacy. Many
wouldn't list the confrontation of judicial supremacy as a priority. What
would you say to those who argue that there are more important things for
Christians to address?

The consequences of judicial supremacy are all around us and they effect
the most vital issues of our time. Probably the most supremacist decision
of the 20th century was Roe v. Wade, through which the court created a new
right called abortion, which was never recognized in the Constitution.
That was kind of the godfather of many other activist decisions.

For example, the court has created other so-called rights like the right
to sodomy, or the right to a same-sex marriage license or the right of an
illegal alien to get taxpayer benefits, or the right of the smut-peddler
to peddle his wares even with taxpayers' money. Roe v. Wade was such a
major landmark in courts stepping out of bounds and beginning a trend of
what I consider unconstitutional, supremacist decisions. If you care about
rights, if you care about morality, if you care about the whole concept of
self-government, then you must be concerned about this issue of judicial
supremacy.

We want to live in a country where we elect representatives and they
fulfill the will of the people. We do not want to live in a country where
we are governed by a tight-knit group of supremacists who are ignoring the
will of the people. People can and must be active in this issue.
If we don't take action now, are we ever going to be able to reclaim
what's been lost?

It's getting worse all of the time. The growth of judicial supremacy has
been insurmountable over the last 50 years. It did not start with the
beginning of our country. For the first 150 years, judges had stayed in
their proper roles in the separation of powers. In the last 50 years, it
has been growing steadily and it will continue to grow if we don't put a
stop to it.