Right Wing Justice: The Conservative Campaign to Take Over the Courts
by Herman Schwartz
Publisher: Nation Books, 2004

Reviewed by: Scott Christianson

Notwithstanding the canard about “liberal activist judges rewriting the Constitution,” the fact is that Republican leaders have increasingly sought to pack America’s judiciary with conservatives who would undo laws and court decisions affecting a host of hot-button issues including abortion, school prayer, affirmative action, worker protection, environmental safety and preservation, and economic regulation.

In the last few years, even under a “liberal” Democratic president, Bill Clinton, they’ve often managed to get their way.

Sometimes it seems the only way the conservatives have failed is when appointees who were thought to be rock-ribbed conservatives, like Earl Warren or David Souter, turn out to be capable of interpreting the law more liberally than their political patrons might have expected.

The stolen 2000 Presidential election was just one example of how the partisan Rehnquist Supreme Court has bent the law and taken unprecedented steps to impose its anti-democratic political will on the people. But the decision in Bush v. Gore was less an exception than part of a recent and growing pattern of right-wing judicial activism.

In his new book, Right Wing Justice, American University law professor and civil rights activist Herman Schwartz provides a welcome history of America’s courts since 1787, noting that a "powerful politically shaped and oriented judiciary is nothing new." But he does outline why the latest machinations amount to a legal revolution.

As one of the nation’s leading legal insiders and constitutional scholars, Schwartz knows what he’s talking about.

Identifying himself as “an old-fashioned liberal, with no apologies,” Schwartz explains his belief “in the necessity of federal, state and local action to deal with those shortchanged by birth or fortune and those in need; that our constitution is a ‘living constitution’ that must respond to the changing needs and obligations of society; and that judges have an obligation to promote ‘liberty and justice for all.’”

He then proceeds to describe how conservatives have waged their relentless campaign to roll back advances made in civil rights, environmental protection and the control of corporate greed.

In providing a savvy analysis of court tinkering under the last three Republican administrations, he demonstrates how extreme right-wing agendas have increasingly crept into judicial philosophy and decision-making, often using specious legal arguments to support their goals.

He also faults the Democrats for being “remarkably supine in their response to the Republican judgeship campaign and indeed, to much of the Republicans’ counterrevolutionary agenda”—an agenda, he correctly notes, that is often at odds with the views and interests of most Americans.

A healthy democracy requires strong and independent courts to counter-balance the power of the executive and legislative branches—in order to protect, in the words of Justice Lewis Powell, “the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.”

One can only hope that John Kerry and other Democrats read this book and finally draw a much-needed line in the sand, before it’s too late.

Scott Christianson’s books include Innocent: Inside Wrongful Conviction Cases (2004) and the forthcoming Notorious Prisons: Inside the World’s Most Feared Institutions (Oct. 2004).

07/18/2004