No Superheroes Here

Note: This commentary was delivered by Prison Fellowship President Mark Earley. In the Oscar-winning film The Incredibles, the bad guys finally find a way to defeat the superheroes -- not with exotic weapons or incredible powers, but with lawyers, judges, and compliant government officials. After Mister Incredible saves a man falling from a building, he is sued for interfering with the man's right to successfully commit suicide. The plaintiff's success triggers a explosion of similar lawsuits against superheroes across the country. Eventually, the government has to step in to stop the chaos emanating from the courts: In exchange for an end to the litigation, the superheroes will put their costumes in storage and enter a kind of witness-protection program. But since the bad guys are still around, all judges and courts accomplish is to endanger their communities. If this sounds familiar, it should -- except that we don't have superheroes to save us from the problems created by our courts. The threat posed by judicially created chaos is the subject of a book with a suitably comic book-sounding title Men in Black: How the Supreme Court Is Destroying America. In it, Mark Levin, a former Justice Department official, describes what he calls a "de facto judicial tyranny." For Levin, "tyranny," though it sounds excessive, is precisely what you call it when "justices seize authority" from the federal, state, and local governments under the rubric of judicial review. How else would you characterize justices vetoing "legislative acts based on personal policy preferences"? In Levin's estimation, "the judiciary, operating outside its scope, is the greatest threat to representative government we face today." That's the point Chuck Colson, along with Robert George, Robert Bork, and others made in the "End of Democracy Symposium" nine years ago. Since then, things have only gotten worse. Nine years ago, addressing the "judicial usurpation of politics," it was abortion and other life issues that drove our concerns. In the past nine years, the Court has dismissed and attacked traditional moral attitudes as irrational "animus" (meaning "hatred") and in the process created a constitutional right to sodomy. Absent some extraordinary measures on the part of citizens, a constitutional right to same-sex "marriage" will surely follow from this current Supreme Court. Levin has some ideas about what those "extraordinary measures" should be. He favors a constitutional amendment that would "term limit" justices. As he told National Review, if justices are "going to behave like politicians, legislating at will, they should not serve for life." He also favors empowering Congress to override Supreme Court decisions by a two- thirds vote, the same amount needed to override a presidential veto. This, he says, would help restore the checks and balances the framers intended for our system of government. Levin's ideas are interesting, but deserve debate. Unfortunately, while many members of Congress love to denounce the Court's excesses, they aren't as ready to actually do anything beyond talk. And since we can't count on superheroes for rescue, it's up to us. We need to let our representatives know how we feel about this "de facto tyranny" and that we expect them to do something besides just talk. The first step is to change the Senate filibuster rules that are being used to keep right-thinking judges off the bench.

04/19/05