What Is Happening to Our Judiciary? Pamela Sumners

Our Constitution is in peril, and in peril mainly because its foremost antagonists now sit on the federal bench or are being nominated to it.


Attorney Pamela Sumners

This speech was delivered on July 3, 2005, at Lake Hypatia’s annual July 4th weekend, sponsored by the Alabama Freethought Association, a Foundation chapter.

By Pamela Sumners

It’s great to be back in Alabama and to see my courageous Alabama freethought clients, who keep up the good fight here. Pat, they say that grace is endurance. So even if Alabama only names highways after Goober and Gomer and doesn’t honor its prophet/agitators like you, you just go on, girl.

Two summers ago almost to the day, the (far) right Reverend Pat Robertson was calling for a “massive prayer offensive” in response to the Supreme Court’s subscription to the “homosexual agenda.” I refer to the court’s decision striking antisodomy laws as unconstitutional. Now, even if you didn’t have a barbeque to celebrate the legal ability to engage in sodomy for gay pride last weekend–and you probably didn’t, since in Alabama gay pride is eight drag queens throwing Jolly Ranchers–I trust you know that a government that picks bedroom locks is one that may pick prayer-closet locks, at the expense of a lot of people who pray, and a lot of people who do not.

Pat Robertson, never unable to rumble his iron jaws to denounce the rights of others, called on his followers two years ago to pray that the spirit would move at least three justices to “remove” themselves. Mr. Robertson reminded his followers to remind god that Justice Stevens is really, really old, Sandra Day O’Connor is getting on up there, too, and had cancer, and Justice Ginsburg had colon cancer.

Gives a whole new meaning to the term “prayer warrior,” doesn’t it? But it seems the Robertson acolytes got confused, or God was playing the “I’m rubber, you’re glue, bounces off me and sticks to you” game–because it was Chief Justice Rehnquist who got reminded of his age and health. But some part of the message, for better or worse, seems to have gotten through with regard to Justice O’Connor.

Pat Robertson’s prayer campaign was not devil-may-care enough for my tastes, anyway. If I’d been in charge of it, I wouldn’t have stopped with just wishing death on a few of the justices I don’t like. I’d have gone Fob James one better and sent the Auburn and Alabama football teams to escort some errant justices straight to the fiery gates. Now that’s a regime change.

Your theological views and mine are probably not the same, so I always appreciate being invited to talk with you anyway. But I am proud to say that my theological views do not coincide with those of a particular Christian who exhorts people to pray for the demise of those with whom he disagrees. If they ever do, I hope you will rush me off to the Leona Helmsley rehab camp for the incorrigibly mean.

But you and I do share many of the same views about the Constitution. The last time I saw you freethinkers in Talladega, Liz Hubertz and I were here prophesying the Alabamification of America. I am sorry to report that our gift of prophecy has been confirmed during the last five years.

With Justice O’Connor’s resignation this Friday, one moderating (even if rightward-tilting) influence in the “culture wars” will now be lost on the Supreme Court. The balance of the court may now be tipped on state-sponsored religion, abortion, and the newly established right to be free of Big Brother in your big gay closet. And if Chief Justice Rehnquist follows Justice O’Connor, forget mere tipping. Think judicial tsunami. And remember, as Pat Robertson did, that Justice Stevens is really, really old.

The rightwing juggernaut of Alabamification is rolling over us all, and flawed philosophies of constitutional jurisprudence have done, and will do, more violence to separation of religion and government than any school-prayer statute or any 5,200 pounds of igneous ugly that Roy Moore could ever install.

It tells me something that I am disturbed by seeing Justice O’Connor go, since so many of her opinions have caused me much complaint. But what I liked about her is that at least she is not a literalist or a far-right robot. It should disturb you that we have lived since the 1980s with a Supreme Court on which Justice O’Connor actually can be fairly and without irony described as a moderate.

I did not always suspect the methodology or the motives of the judiciary. Even four or five years ago, I trusted the courts to continue to protect citizens’ rights, and made some naive speeches praising the black robes for protecting us all from the white robes. I am stunned to reread those 1990s speeches and see the level of confidence I had in the courts and in the existence and continued vitality of the rule of law.

A stray good ruling every two years or so does not restore my faith. The truth is, I suffer from President Bush’s “soft bigotry of small expectations” where the judiciary is concerned, and I certainly have low expectations of President Bush’s likely nominees. It’s a good thing Torquemada is dead. One decision here or there does not alter my view that our Constitution is in peril, and in peril mainly because its foremost antagonists now sit on the federal bench or are being nominated to it.

I continue to believe that the right-wing-packed courts, some 70% of the federal trial and appellate judges having been appointed by Reagan or Bush 41, and of the ideological ilk we might expect–Reagan having appointed over half of the sitting judges by the time he left office–have taken a tire iron to the Constitution and beaten the tar out of it. Alexander Hamilton, John Marshall, Thurgood Marshall, and Earl Warren would not recognize the intellectual wreckage that passes for constitutional construction these days.

We live in an Orwellian universe in which these federal judges vacillate between extremes while denying extremism. There are at least three faces of this extremism in the guise of constitutional construction. We may safely call it constitutional deconstruction.

Sometimes these judges incant reverence for the rule of law even while trashing it in order to seize the results they want. Sometimes they protest that the civil rights gains of the 1950s through the 1970s are unconstitutional deviations from the “original intent” of those whom they selectively ordain “the founders.” All the while, these extremists accuse the thinning ranks of judges, who honor settled precedents that actually rest on the Constitution as we have known it, of “judicial activism.”

There is an occasional variance from these two extremes that is just as dangerous. That is the abnegation of judicial power to redress wrongs, in the vaunted name of “judicial restraint”–as though the job of judges were nothing more than processing outputs, following precedents to their furthest conclusions, which of course, being a methodology of the extreme, renders the whole decision-making process surreal or abstract–something appropriate to law review articles or a philosophy text.

But laws and constitutions are made because people exist, not because ideas exist. The judge who forgets that may be a writer of legal philosophy, but he has abdicated his responsibility as a judge.

It is an astonishing thing that a Supreme Court that has returned us to the discredited Calhounian view of the Constitution, a view that lost in 1789, a view that holds that states, rather than the people who live in them, have “rights”–as though states are sentient beings–is the same court that gave us the execrable decision of Bush vs. Gore. The Bush vs. Gore court is the same court that actually capitalizes, in its opinions, the phrase “Our Federalism.” (If there weren’t some atheists in this room, I’d ask you to take a reverential moment of silence now for “Our Federalism.”)

Their fetishism, is more like it. “Our Federalism,” capitalized, italicized, ostensibly sanitized, is just the same old states’ rights mule in horse’s harness it always was. If any of you are offended that I just quoted “Mammy” from Gone with the Wind, your offense should be directed at those lawyers and judges whose actions make the metaphor apt.

Americans thought, rationally enough, after Gettysburg and after the bridge at Selma, that we had buried and then tortured the ugly corpse of “states’ rights.” But it lives yet, this atavistic, mouldering monster, meeting its resurrection in a court that is not Earl Warren’s or John Marshall’s.

States’ rights, worshiped as “Our Federalism,” means what it has always meant, and that meaning is ominous for liberty of thought and diversity of being. The doctrine has merely had a change of venue from the schoolhouse to the courthouse.

The present chief justice was the law clerk, who, in the 1950s, wrote of Brown v. Board, “It is about time the court faced the fact that white people in the South don’t like the colored people.” Under Chief Justice Rehnquist’s tutelage, we have learned that states’ rights is a theory of equal-opportunity callousness. The monster’s prey is no longer just “the colored people.” Now it includes old people, people with disabilities, rape survivors, people on death row, and people just going to work every day.

A 1990s death-penalty opinion begins, “This is a case about federalism.” The court reasoned in the 1990s that citizens who work for state agencies have no right to sue for overtime pay under federal law because that would offend the “dignity” of the states. In the Garrett case, a case from Alabama pursued by former Attorney General Bill Pryor, the court held that citizens who work for state agencies have no rights under the Americans with Disabilities Act, because that would infringe on the sovereignty of the states.

In Garrett, the Supreme Court also legitimated an enormous judicial power grab, ruling that it had the power to determine whether Congress, in passing federal civil rights legislation, had what the court thinks is a good enough reason to do so. The Supreme Court will henceforth determine whether legislation is “proportionate” to the problem Congress has identified, lest the dignity of the states be offended by recognizing the rights of citizens who live in them.

“Proportionate” is such a tidy word, such a philosophical and law journal kind of word. It could almost reassure us that the judicial system is run by accountants, or the Bureau of Standards, or an alchemist. But the ostensible accountants in today’s judiciary do not operate by the impartial laws of arithmetic, as Bush vs. Gore underlines.

How can it be that the Calhounians on the court can rip away the jurisdiction of Florida’s highest court on questions of Florida election law?

The answer is surprisingly simple, says Justice Scalia. The Supreme Court stopped the vote count in Florida because continuing it might have “cast a cloud upon” George W. Bush’s claim to legitimacy. Sort of like one of those hereditary House battles involving Tudors, Stuarts, illegitimate heirs and princes in towers. Justice Scalia’s justification strikes me as an attempt to invoke respect for the rule of law as cover for a crass orientation to results.

But stealing an election in order to save the rule of law is a little like burning down the house to evict the robber inside. The Supreme Court may as well have said, “Our majority of five coronates King George. Earl, fetch me that tire iron.”

The court’s states’ rights binge, interrupted by the Bush/Gore hypocritical interlude (but interestingly featuring the same 5/4 split), coincides with the fetish some of its members have demonstrated for “original intent”–where it suits them. By the originalists’ theory, an act is constitutional only if it accords with what the founders would have thought in 1789.

But like the states’ righters, the originalists have to account for a sorry intellectual heritage and a humanitarian forfeiture. Maybe Richard Scrushy’s accountants can help them explain why the stars in our constitutional constellation were set in 1789 and have not burned brighter since.

The cold-eyed originalist bean-counters should explain for us simple-minded, or low-minded folks who do not engage in ancestor worship, why we would want to be governed by the dead-hand prejudices of 1789. The Constitution as ratified in 1789 allowed importation of slaves until 1808, counted slaves as 3/5 of a person, and extended the vote only to white male property owners.

Justice Scalia, dissenting in the antisodomy case, reminded us that judges, unlike the rest of us mortals, must follow any trail of reasoning through to its logical end. Logic ordains the result, handily absolving judges of accountability for the consequences of their decisions. Every result is just the law of the neutral universe. But judges don’t live in the platonic universe any more than we do. They live in a messy, screwed-up world like the rest of us. And it is not 1789.

And besides, if Justice Scalia is correct in placing a premium on formal logic in law, and he is an originalist, we might as well start loading the slave ships again, reverse three decades of precedent extending the 14th Amendment to protect women’s rights (since its text, and the intent underlying it, protect against racial discrimination only and not gender)–or better yet, the entire 14th Amendment can be scrapped as inconsistent with the slavery provisions of the 1789 Constitution.

But don’t fret. The Fourteenth Amendment hasn’t been loaded up for shipping to Africa yet. Justice Scalia touts the consistency of reasoning toward the last slippery slope only when he’s losing and wants us to believe that dire consequences will follow.

Original intenters, like John Birchers, like biblical inerrantists, like every small-brained hobgoblin of orthodoxy, will read a phrase in the Constitution such as “Congress shall make no law respecting an establishment of religion” and deduce from this that the states are perfectly free to do so. “It says ‘Congress,’ see?” Justices Burger, Rehnquist, Scalia and Thomas have articulated variations on this theme. So it turns out that a few of our nation’s most powerful jurists have a view that gets us to the same place Fob James’ “Bill of Rights don’t apply in these parts” gets us.

Original intent is like a propagandist’s cafeteria plan feeding a line of bull to the ignorant. The Goebbelses of the bench and bar realize that most citizens are not historians. Originalists are thus free to seize the “intent” of people who voted against the Constitution and call them “founders” because they happened to walk the earth in the eighteenth century. Such dishonest tendencies prompted me to note in two briefs involving Ten Commandments displays that Samuel Butler was right when he wrote, “God cannot change the past; only historians can.”

Originalists are fond of psychobiography, which is no better than grave-robbing, snatching a rhetorical bone here and there from anyone who happened to attend the Constitutional Convention, to support untenable premises. But it is ludicrous to believe that Elbridge Gerry, Oliver Ellsworth, or George Mason have views that have anything to do with the Constitution as adopted. They were against it.

The last people who should have dead-hand control over our Constitution are its original batterers, and they were the states’ rightists. They were also the “spell out every term in the text and give no quarter for flexible interpretation” crowd, whose hearts were filled with dread by phrases like “necessary and proper” powers and “unreasonable searches and seizures”–because those deliberately vague phrases mean that content must be supplied. They lost in the 1780s. They may have a New England highway named after them, but they left no fingerprints on our Constitution–until now, in the hands of polemicists. When you hear someone say that judges should follow the literal text of the Constitution, or that they should strictly interpret it, that is a clue that they are aligning themselves with the losers of 1789, ironically enough, the people whose intent never mattered.

There is only one reason to have created the Constitution and a judiciary to construe it, and that reason was explained by Justice John Marshall almost 200 years ago. The first Justice Marshall is the best rebuttal to those who view the Constitution as just a piece of parchment under glass in the national archives, the best reminder that our Constitution is by design a living, organic thing designed to evolve as our democratic needs evolve. Marshall said, in the most important line in all of constitutional law, that we must never forget that it is a constitution, not a legal code, that we are expounding. Therefore, only its great outlines are marked, the governing principles set forth. There is no punch list providing for every contingency in literal terms.

Justice Scalia, however, whom President Bush has praised as the model jurist on whom he would pattern his Supreme Court appointments, prefers his Constitution well-done. He said in a 2003 speech, “The Constitution that I interpret is not living but dead. It means today not what current society . . . thinks it ought to mean, but what it meant when it was adopted.” Chief Justice Taney applied just such a combination of literalism and original intent to return Dred Scott to slavery in the 1850s.

But, like the Monty Python “throw out your dead” skit, the Constitution protests that it is “not dead–yet.” It will die only if original intenters–with their elliptical and generally hypocritical take on history, states’ righters, and judicial lethargists of the right–succeed in their efforts to kill it with the complicity of a hostile or cowardly Senate.

Those who would take our nation into the wayback machine, who would reverse four decades of civil rights progress, hate the truth that the Constitution was intended to evolve. For much of the twentieth century, it evolved toward a greater understanding of the rights of citizens and of democratic purpose. But the waybackers are reversing that evolution.

The judges who are busily deconstructing the Constitution of John Marshall and Earl Warren didn’t come about by accident. Hillary Clinton wasn’t paranoid when she observed that a vast right-wing conspiracy is operating; she was right. And the object of that conspiracy is a return to a world of white privilege, a world where father really does know best, a facade of social consensus even if that consensus is enforced by fear of Joe McCarthy’s blacklists, a world in which it is right to insert “under God” into the Pledge of Allegiance or the commies will get you, a world of southern fried chicken at Sunday church socials, a world in which we all pray in schools because we all agree on the existence of God and his sacred blonde identity, and if we don’t, we are cowed enough never to say we disagree.

Stepford citizens for Stepford lives.

The plot to return us to the land that time forgot, to complete our Alabamification, can succeed only if the hostile takeover of the judiciary continues. The rightwingers whined for two years that the Senate filibustered the worst of Bush’s judicial nominees, but in fact, in 2003 the Senate had caved in and confirmed 140 out of 142 of them, including Jeffrey Sutton, whom Bill Pryor hired to defend the states’ rights position in the Garrett case, and Michael McConnell, architect of the theory that big honkin’ granite monuments and King James Ten Commandments plaques directly behind the judicial bench are mere “acknowledgments” of god or gratuitous sops to history.

At the end of 2003, Bush had more than 100 appellate vacancies to fill, not counting potential Supreme Court appointments. Think of that as one-eighth of all judicial slots–and add that to the 70% already filled by Reagan-Bush 41. Bush had all those chances precisely because right-wing senators, most notably Sessions of Alabama, Orrin Hatch, and John Ashcroft, blocked Clinton nominations from getting a vote anywhere. The question of right-wing filibusters never came up. The Congressional Research Service reports that 37% of Clinton’s nominees never even made it to the Senate floor. Despite these plain truths, right-wing totems cried foul at the barest teaspoon of sauce for the gander.

And what did the Senate, solidly in the grasp of a far-right wing of the majority party that also controls the executive branch, do in 2005? Did the minority party stick to its guns and try to prevent the three most horrendous of Bush’s appellate nominees from going forward by filibustering, letting the wingers go nuclear, and then showing us some gumption by walking out or refusing to pass Bush’s bills or budgets? Did they screw their courage to the sticking place? What did the minority party in that wise body do?

Why, it did just what you do when defending a principle.

It cowered, it slithered, it shivered, it waved the white flag and surrendered the only leverage it had, of course. It merely screwed its courage. Then it congratulated itself on avoiding the nuclear option by moderately agreeing not to filibuster the three furies and to instead salvage a scrap of pride or public cover by blocking two innocuous know-nothings nobody knows or cares about. Noted liberals preened for the cameras about averting the precipice and emitted some noxious vapors about what a great day it was for the Senate as an institution.

And yet . . . somehow the geniuses of the press, praising compromise on that deal earlier this summer, failed to note that the universal laws of mathematics will not be suspended when the issue is the Supreme Court. Fifty-one votes will still be 51 votes, just as they were before the Democrats demonstrated their spinelessness as well as their stupidity in this matter. Numbers do not admit of compromise. Constitutional principles shouldn’t, either.

(As a prankish little “gotcha,” just after house impeachment manager turned-Senator Lindsey Graham suddenly blossomed into a “moderate” for the compromise that gored the Democrats’ ass, Bush announced that, oh, by the way, he had a couple hundred lower court life tenure slots to give away now that the Senate had been so nice and agreed not to filibuster.)

You sleep with the dogs, you get fleas.

So apart from the lack of nerve among our unenlightened legislative oligarchy in Washington, how exactly is deconstruction of the Constitution through subversion of the courts actually being accomplished?

In 1999, Lawrence Walsh, a lifelong Republican, warned about a group with a reassuring name, whose PR hacks spew reassuring rhetoric about judicial restraint.

Team Bush explicitly looks for Federalist Society membership in judicial nominees. What the Federalist Society actually believes is the antithesis of what its name implies.

Its lawyers have defended antisodomy laws and opposed laws allowing abortion even in cases of rape or incest, ostensibly because they do not believe that the Constitution protects a zone of privacy. They have championed states’ rights theories to defend English-only laws, to roll back the Voting Rights Act, to strike the Federal Violence Against Women Act, to oppose civil rights laws protecting gay people, and to defend state-sponsored prayer in schools and permanent religious displays on public grounds.

They also have extreme positions on business and consumer issues. They have fought to develop the Everglades, helped Exxon resist action on global warming, resisted higher cigarette taxes, and have sponsored a forum after Bush the younger’s selection titled “Rolling Back the New Deal.” Its trigger-happy members have even written articles with titles like “Loaded Guns Can be Good for Kids.”

Of course, these principally ideological warriors care about business and environmental issues because many represent or once represented corporate clients. But another reason they care about these issues is that the same Congressional power that underlies regulating business often has been the power that restrains states from trampling civil rights. When Congress passed the Civil Rights Act of 1964, it did so under its power to regulate interstate commerce. So it’s no surprise that while some judges were busily resuscitating states’ rights, they were also taking the tire iron to Congress’ commerce power, the very pillar supporting modern civil rights laws.

The Federalist Society’s proudest member is former Alabama Attorney General Bill (“in Alabama I’m sometimes called a moderate”) Pryor, who liked then to be called “general” and now likes to be called “judge.” When last I spoke about Bill Pryor, I had a few things to say about state-sponsored prayer and vibrators–topics which rational people would find logically disconnected. If there is anything that can de-eroticize a vibrator, it would have to be the vision of Bill Pryor. If those things had just been sold with an attorney general’s warning from Bill Pryor on them, the free market he touts would take care of his objections to their sale, making the several trips he took to the eleventh circuit to decry latex unnecessary.

Bill Pryor, the poster child for states’ rights, back when he was “General” Pryor, liked to call himself “the people’s lawyer.” From the day he took office as Alabama Attorney General, he made himself busy intruding into the affairs of other states on Alabama’s dollar.

Let’s look at the record of the “in Alabama I’m sometimes called a moderate” ideologue that our lily-livered Senate just confirmed for a lifetime appointment. Let’s look at the record as a prophecy, because of all of Bush’s nominees to date, Pryor is the worst, and before the Republicans surged hard-right in 2000, even Arlen Specter would have known it. And before the Democrats lost to Osama bin Laden, and adopted a mealy-mouthed aversion to saying anything worth listening to, they would have known it, too.

Bill Pryor assured that Alabama was the only state in the union to file a friend-of-the-court brief in a case from Cook County, Ill,, arguing to weaken the Clean Water Act. Bill Pryor assured that Alabama was the only state in the union to file a friend-of-the-court brief in a case out of Virginia, in which he argued that the Violence Against Women Act infringed states’ rights–36 other states defended Congress’ power to pass the law.

In two cases from the Midwest, Bill Pryor argued that states could restrict abortion notwithstanding Roe v. Wade. In NOW v. Scheidler, he filed a brief arguing that violent abortion protesters could not be held liable under RICO and that free speech would be chilled by punishing them like any other criminal.

When Congress outlawed publication of state DMV records so that stalkers and antiabortion crazies would have to work harder to be assassins, Pryor defended states’ rights to publish them. In the Texas antisodomy case, joined only by South Carolina and Utah, Pryor analogized homosexual sex to prostitution, pedophilia, bestiality, and incest. “The people’s lawyer” even found time to file a brief in favor of killing red wolves somewhere. Are there any red wolves in Alabama to kill? Never mind–loaded guns can be good for red wolves.

In two cases from other jurisdictions, including one in which Virginia wanted to execute a man with an IQ of 59, Bill Pryor went too far for justices other than Rehnquist, Scalia, and Thomas. In an actual Alabama case (for a change), he went too far in his defense of the hitching post for prisoners for even this Supreme Court.

And of course there’s the Garrett case. Liz Hubertz and I wrote against Bill Pryor on behalf of 34 disability advocacy groups, and we lost on states’ rights grounds. It is now perfectly legal for any state agency or university in the country to fire disabled or sick employees without fear of ADA lawsuits. When I whined, Liz reminded me that we had better prefer losing to being the lawyers cruel or disingenuous enough to have devised the winning argument in a Garrett or a Korematsu.

With friends of the court like this, the Constitution needs no enemies.

But I think beyond this sorry record. I think back with an Alabamian’s elephantine memory to when Judge Frank Johnson appointed Ira de Ment to look into conditions at Partlow, Alabama’s facility for mentally retarded children, in the 1970s. Ira de Ment was then United States Attorney. Ira de Ment found children shackled, covered in urine, tormented by flies, some of them so hungry they were actually eating gravel. Ira de Ment used the power of his federal office to get a little justice for those children, and Ira de Ment’s compassion has been many times demonstrated in his later career as a federal judge.

Bill Pryor stood in Ira de Ment’s courtroom 25 years after Partlow, trying to vacate a consent decree involving Alabama’s abysmal foster-care system. He stood there and said, “It matters not to me whether the actions would leave children unprotected. My job is to make sure the state of Alabama isn’t run by federal courts. My job isn’t to come here and help children.”

Well. Maybe some people are just too intolerant of the milk of human kindness to be judges.

But the weird amalgamation of unkind neglect toward the least of these, and overbearing busybodyism when it comes to policing spiritual and privacy matters that Bill Pryor exemplifies is just what Bush prizes. Look for it–coming soon to a political theater near you.

Well, whine and whimper—and what?

For 25 years, the right has been mobilizing. It has taken the intermediate appellate judiciary and will soon have the Supreme Court. Liberals and moderates have been stupid enough to think the courts don’t matter, or complacent enough to think that they are our bulwark and will remain so even if we kick the foundation from under them.

Nominees come and go, say the sanguine, lazy, latte liberals, hi-dee-ho, and the republic survives them, ho-hum. Liberals and moderates have been naive enough to think that politics does not dictate the composition of the courts. Liberals offered no criticisms as two southern-governor Democratic presidents attached such a low priority to the courts that they would not fight for their nominees as George W. Bush has, and allowed the wholesale Alabamification of several Courts of Appeals–even going so far as to trade Florida judges for California ones on the theory that the Eleventh Circuit could get no worse but the Ninth might have something to lose.

Liberals and moderates who are sanguine in today’s polarized age, with the seeds of authoritarian movements and theocratic objectives nurtured by sophisticated propaganda and well-organized operatives, are simply stupid. Let me say it again so that you are sure you heard it right–stupid is the word I chose. (We have become so used to people not saying anything impolitic that we have forgotten how to speak.)

To the sanguine and stupid friends you may have, I say: the whole political landscape has changed, and more importantly, the structure of our institutions has been profoundly changed over the past 30 years and radically altered again in the last few years, so that old platitudes about our robust democracy rebounding from tyrannous little hiccups in a generation are no longer good assumptions.

I have lost my patience with these old liberals, and I never had any patience with moderates who are lazy or in denial of what is happening to our country.

The problem with the courts begins with and can only be ended by the other branches of government. One hundred million Americans sat home in November 2004. Radicals hide behind the handful of moderate Republicans on the national scene, using them as cover. Dominionists are poised to deliver a faith-based science curriculum approved as “religious neutrality” by a few compatriots on the bench.

We can’t stop them until we have a reality-based language. Let’s call the Federalist Society what it is–radically antidemocratic, authoritarian, and a propaganda organ for the far right, designed to make the far right appear mainstream. Let’s call dominionists who want to take back government for God what they are, and not let them slide under the cover of “Christian” or “values-based voters,” or “Conservatives.” Let’s call them out as theocratic authoritarians, God’s bullies.

And let’s remember, while we’re about all, this a few words from Yeats, who looked around at 1920s fascist movements arising, and saw stupid complacency and apathy all around him, and wrote–

Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

We had better make a friend of conviction and make Congress do the same, and cultivate some passionate intensity of our own.

Otherwise, it’s roll tide, and that rough beast is slouching from Birmingham to be born.

Pamela Sumners is newly-appointed executive director of NARAL Pro-Choice Missouri. An attorney, she has served as the Director of Gay and Lesbian Rights/AIDS and Civil Liberties Projects for the ACLU of Illinois. Prior to that, she had a private law practice in Birmingham, Ala,, where she focused on constitutional and employment litigation.

Among her many high-profile cases were a challenge to state court Judge Roy Moore’s posting of the Ten Commandments behind the judicial bench, a suit challenging Alabama’s fourth statute allowing school-sponsored prayer in classrooms, and a suit to protect the religious liberty of the only four Jewish students in a rural school system. Sumners’ constitutional law practice has included several Supreme Court cases.

Freedom From Religion Foundation