Ask the Author: Phyllis Schlafly, Part 2

Yesterday, we posted part 1 of our discussion with Phyllis Schlafly, whose book, The Supremacists: The Tyranny of Judges and How to Stop It, has recently been revised and expanded. Below is part 2 of our exchange.

[One note: part 1 of our discussion inspired several comments that I was unable to post since we now only approve comments by people using their full names. If you would like to add your voice to the discussion – and we encourage you to do so – please ensure that you have chosen to display your full name in your TypeKey profile. If you are having trouble with this and would still like to post, you can e-mail jharrow [at] akingump.com with the comment and your full name and I will post it on your behalf.]

As a prominent female thinker and writer, you criticize Justices O’Connor and Ginsburg for “fostering feminism.” Others say that this is perhaps understandable given that their personalities were shaped by being brilliant legal minds who could hardly get a job out of law school just because they were women.

Both Justices O’Connor and Ginsburg are younger than I am, and I had no trouble getting a job when I graduated from college and obtained a Master’s degree from Harvard. I am skeptical of self-serving claims, made decades later, that a woman could not get a job due to alleged sex discrimination. At any rate, it surely is bad grace for those two, who have enjoyed the most prestigious and powerful jobs in America, to complain about discrimination.

Furthermore, it is clear that O’Connor was appointed to the Supreme Court solely because she is a woman. It’s difficult to see the basis for claiming that those two women are “brilliant legal minds.” Becoming a judge does not make one “brilliant” (even though supremacist judges seem to think it does).

When Justice O’Connor became the first woman to sit on the Supreme Court, do you feel it becomes her obligation to work for a society that is more equitable to her gender?

This question makes two false assumptions: that women are disadvantaged in America, and that women are best able to address and remedy these disadvantages. Both propositions are absurd. All jobs that women want are open to women, and nearly 60% of college students are women.

I don’t think any Justice should be biased in favor of his or her own personal characteristics. Should a short Justice “work for” people who are short? Should an elderly Justice “work for” the elderly? Should a fat umpire “work for” players who are fat? Of course not. Such an approach should disqualify Justices from their obligation to impart justice fairly to all, like an umpire.

So is there a difference between working for gender equality and “fostering feminism”?

This question seems to assume that feminism fosters gender equality, which is not true. “Feminism” is a peculiar ideology that has almost nothing to do with the kind of gender equality that the American people support. (Remember, the federal equal pay for equal work statute was passed in 1963 before the feminist movement started.) Feminist ideology is based on victimology, the false claim that American women are oppressed by our patriarchal society. The truth is that American women are the most fortunate class of people who ever lived on the face of the earth.

The top priorities of the feminist agenda have little to do with gender equality: abortion, same-sex marriage, affirmative action for women, sexual harassment, domestic violence, and rape awareness. Feminism insists on placing women soldiers in military combat where they can be captured by the enemy and abused as prisoners of war. Feminism is responsible for eliminating over 170 college wrestling teams because they are somehow too masculine and they don’t like the gender difference that more boys like to play competitive sports than girls. Just this fall, in a high-profile debate with Justice Scalia, ACLU President Nadine Strossen stated on October 15 that the ACLU supports a constitutional right to polygamy, a practice that is totally demeaning and harmful to women.

If feminism were about women’s achievement (which it is not), their heroines would be Margaret Thatcher and Condeleezza Rice, but the feminists are totally silent about them.

Clearly one of the issues you feel most passionate about is the Supreme Court’s establishment clause jurisprudence – you feel the Court has been hostile to religion. For instance you write, “If the American people don’t stand up for the Pledge of Allegiance, the Ten Commandments, and the sanctity of marriage, what do we stand for?” In that light, how do you respond to your critics who say that in a country where people have freedom to practice whatever religion they choose, Americans do not stand for any specific religious symbols like the Ten Commandments at all?

The Supreme Court’s hostility to religion is not just my “feeling”; it is a fact. Chief Justice Rehnquist said that the Court “bristles with hostility to all things religious in public life.” The question assumes that support of the Pledge of Allegiance, the Ten Commandments, and traditional marriage are wholly religious issues, which is not true. Americans are united on many things for many reasons, ranging from outrage over 9/11 to our desire to recite the Pledge of Allegiance. No one in our country is forced to recite the Pledge, get married, or learn the Ten Commandments. But we are not going allow a few people to censor the will of our overwhelming majority.

The American people who fund our public schools should have a strong voice in how they are run, and the judiciary should not be censoring our Pledge of Allegiance because a minuscule percentage object to it.

In a country that’s roughly 80% Christian, what has happened so that such a large majority has had, in your mind, many religious freedoms taken away from it?

Censorship of God in our society has only been possible because it has happened incrementally, starting with the Warren Court and continuing to this day when the Court banned a prayer before a football game. Only by quietly hijacking our judiciary for political rather than legitimate legal purposes has this been able to occur. Since the Warren Court, the law schools have been teaching that the Constitution is whatever the Supreme Court says it is. Unfortunately, most of our judges today have received legal educations from post-Warren-Court law professors who teach that judges should be policymakers and that court should be supreme over the other branches of government.

Also in reference to religion, you write that “Congress should pass a law to clarify that the federal courts, including the Supreme Court, do not have jurisdiction over whether an acknowledgment of God by public officials violates the establishment clause.” If this happened, who do you see as the arbiter of what does and does not violate the First Amendment?

We don’t need a national “arbiter” of social policy. Before the Warren Court’s banning of prayer in schools, such decisions were made by states and local school boards. Some allowed prayer; some didn’t. That’s the American way. We got along just fine before the Supreme Court decided that it wants to decide national policy.

There is nothing the matter with the First Amendment the way it was written, and it served us well until the Warren Court decided to change it into things it didn’t say. The notion that third-graders are “establishing” a religion because they recite the Pledge of Allegiance is absurd. Those who want to make that claim can present it to elected state court judges and other elected officials as well as legislatures. It is not only judges who take an oath to honor and uphold the Constitution. Many elected officials and even practicing attorneys also take that oath. Federal courts have simply lost their credibility to decide fairly and honestly issues arising under the Establishment Clause. When someone abuses their power and shows their bias, then the power must be taken away. It is like a child who misuses a toy to hurt another child. The responsible reaction is to take the toy away.

You argue for restoring “balance” to the three branches since you feel the judiciary has taken too much power, but some would say that stripping all the power from one branch in this area tilts the balance too far toward the legislature. In your mind, what be an ideal balance in this area?

Let’s clarify our terminology. “Stripping” is a pejorative word; the U.S. Constitution gives Congress the power to create, and thereby define the jurisdiction of, all federal courts, plus the power to create “exceptions and regulations” to Supreme Court jurisdiction. What the Constitution created was a system of Checks and Balances, and Congress should use its power to check the runaway judiciary in order to restore some balance. Congress should use its Article III power to define the jurisdiction of the judiciary.

Limiting the jurisdiction of federal courts will work wonders in stopping claims of judicial supremacy (a power that Congress has rightfully asserted dozens of times in our history). In my example above, a child who loses his toy after misusing it will often understand the message and begin to behave differently. Courts will likewise get the message once they are chastened by Congress in a meaningful manner. Those who demand an “independent” judiciary really want the courts to be independent of the Constitution.

Last, the two most closely watched cases of the young Supreme Court careers of Chief Justice Roberts and Justice Alito are coming to argument soon, and they deal with the federal partial birth abortion law and racial diversity in public schools. What do you hope to see from the new Justices and from the Court as a whole in these cases?

I hope that Justices Roberts and Alito will back away from decisions that purport to decide social, political, economic, and cultural policies such as abortion. Those policies should be set by legislatures and school boards. I hope the Supreme Court justices will go back to their proper role of calling the balls and strikes and not changing or rewriting our Constitution.

Thanks again to Phyllis Schlafly for participating in this edition of “Ask the Author.”