Was Terri Schiavo's piteous ordeal a victory for the rule of law? After all, interest groups and the politicians they pressured were trumped by the courts. The macabre circus that arose around Mrs. Schiavo's case counted for nothing: Pinellas County Judge George W. Greer issued a steady series of rulings despite being targeted for electoral defeat and impeachment, compared to Joseph Mengele and other Nazis, and even threatened with death. The public didn't buy legislation that sought to rig the case for Schiavo's parents. "If nothing else," wrote a New York Times analysis, "this series of decisions vindicated the one conception of American judicial power."
But that isn't quite right. In fact, the Schiavo episode spells trouble ahead for the courts that protect our rights. The judiciary is fast becoming enemy No. 1 in the culture wars—and the side wearing the black robes is losing. The anguish over Mrs. Schiavo's nightmare is boosting a rising common culture of attacks on the independence and legitimacy of our courts. In Washington and far beyond the Beltway, this new war on the courts is being waged through legislation and political intimidation, fueled by special interest campaigns of rage. "Federal courts have no army or navy," warned Rep. John Hostettler late last year. "At the end of the day, we're saying the court can't enforce its opinions."
Consider the bill that sailed through Congress on Palm Sunday, hustling Mrs. Schiavo's case into federal courts. Legal purists cringed at the politics of crafting jurisdiction to reach a desired result. But the For the Relief of the Parents of Theresa Marie Schiavo Act was just another day at the office for legislators working to manipulate the jurisdiction of our courts to achieve political ends. Hostile members of Congress increasingly seek to reverse or forestall decisions they don't like by eliminating jurisdiction over important constitutional cases, shuffling selected lawsuits between state and federal courts, and choking off the discretion of judges to weigh evidence and law.
These efforts often come straight off the talk-radio dial. Last year, for example, even as the federal courts mulled litigation involving the Pledge of Allegiance, the House of Representatives was passing a measure to forbid courts from ever hearing such a case in the first place. As the debate raged over a courthouse display of the Ten Commandments, a measure was written to deny federal courts the power to hear any suit involving a governmental official's "acknowledgment of God as the sovereign source of law, liberty, or government." And the recent California marriage decision reignited efforts to amend the U.S. Constitution in order to deny state courts the ability to interpret their own state constitutions.
These efforts at court-stripping don't just represent just good wedge-issue politics; increasingly, they have become the law of the land. The USA Patriot Act reduced judicial discretion to review law-enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies. The 2003 "Feeney Amendment"—protested strongly by Chief Justice William Rehnquist—sharply limited the ability of federal judges to issue sentences below federal guidelines in order to set punishments that fit the crime.
As they grow more confident, enemies of the courts are growing more extreme. Buried within the Real ID Act recently passed by the House is a provision that would swap martial law for the rule of law. If enacted, the bill would give the secretary of homeland security unilateral power to waive any law on the books that might interfere with the building of border fences—including civil-rights and minimum-wage protections, and even criminal laws. Courts would be barred from ever reviewing the secretary's stroke of the pen.
Measures like these flow from a view of our courts as little more than enemy combatants. After the Supreme Court ruled that certain antiterrorism tactics violated the Bill of Rights, Attorney General Ashcroft accused it of endangering national security. During the Schiavo case, House Majority Leader Tom DeLay warned that "no little judge sitting in a state district court in Florida is going to usurp the authority of Congress." And the latest best-selling screed against the judiciary—Men in Black: How the Supreme Court Is Destroying America—repeatedly accuses the courts of "tyranny" that make it "difficult to maintain a republic." Congressional leaders brag that they will "take no prisoners" in dealing with the courts and that "judges need to be intimidated."
This intimidation campaign is now well under way. A Reagan-appointed judge was recently hauled before a congressional committee to explain comments that weren't properly supportive of sentencing guidelines. There's a new effort to make impeachment into a respectable punishment for federal judges who make controversial decisions, exceed their jurisdiction, or consult foreign law in their deliberations. State judges have also seen a spike in impeachment threats: 39 from 2002 to 2004, almost double the previous three years.
The job of protecting our rights sometimes requires that our judges show a little steel. After the 1954 Brown v. Board of Education desegregation decision, lawmakers tried to impeach justices, abolish life tenure on the Supreme Court, and strip it of jurisdiction over public-education cases. When the court struck down laws banning interracial marriage in 1968, opponents pointed to polls showing that more than 70 percent of Americans disapproved. In 1943, at the height of the global fight against fascism, the court struck down laws requiring Jehovah's Witnesses to recite the Pledge of Allegiance.
The courts have survived these and other contretemps—including the Bush v. Gore firestorm. But in the age of cable television and blogs, instant outrage is getting easier to manufacture. Next week, such anticourt luminaries as Majority Leader DeLay, Phyllis Schlafly, and Alan Keyes will gather in Washington to lambaste "the Judicial War on Faith." Conference organizers call it "the beginning of a broad-based effort to save America from the judges."
Our courts now face nothing less than a permanent campaign—the kind political organizers and fund-raisers lick their lips at, since there will always be controversial new cases to replenish the trough. This appetite for fresh outrage helps explain proposals to give parents more rights to litigate end-of-life disputes. After all, why would those who accuse judges of murder want to dump thousands more controversial cases into their laps? In the world of hardball politics, it turns out that losing in court can be a very good thing indeed.