Disrobed : The New Battle Plan to Break the Left's Stranglehold on the Courts
Here's the book's description from the email I just received:
Disrobed explains how conservatives can bring the Reagan Revolution to America's courts not only by winning in the courts, but by using the courts and lawsuits as political weapons to gain political victories. In Disrobed, I advocate principled conservative judicial activism, the selection of judges fitting the mold of Ronald Reagan (i.e., Judicial Reagans), and lawsuits that target liberal laws and institutions."
I'm not sure I agree with the premise of using the courts to promote a conservative brand of judicial activism, but the premise sounds like a thought provoking idea nonetheless.
Source: legalmisc.blogspot.com/
We can view every Right Wing slogan as projection/propaganda. In this case, the rant against "activist judges" really means, "Non-wingnut activist judges." It has always meant that. There is no greater danger to liberty than the Federalist Society. And the Right's rant about "historical revisionism" is merely another projection/propaganda maneuver.
The ACLU was not conceived in a era of too much liberty and was in fact born in an era of extreme oppression. As Samuel Walker so clearly points out in
Popular Justice: A History of American Criminal Justice, the ACLU was a reaction to the Red scare, when
"The Red Scare introduced two important new elements to American criminal justice. The first was a new category of political crime. The attack on alleged radicals, which had been growing since the turn of the century, criminalized ideas and associations. Under the 1917 Espionage Act, critics of the war such as Eugene V. Debs were sentenced to ten years in prison merely for opposing the war. Virtually every state enacted laws against sedition (which meant criticizing the government)...(see
IN RE DEBS, Petitioner to read the decision.)
"The attack on political ideas and associations did not go unopposed. Shocked by the gross violations of free speech and due process during the war, a small group of activists organized the American Civil Liberties Union (ACLU) in 1920."
So the ACLU was the consequence, not the cause. If the government had not been draconian and repressive, no need for the ACLU to force it to take responsibility. What's more, many of the "coddling criminals" rants from the Right were and are reactions to the ACLU's fight against oppression. For example, one report out of the 1929 Wikersham Commission,
Lawlessness in Law Enforcement, was penned by 3 lawyers associated with the ACLU:
... a scathing indictment of police brutality. It found that the 'third degree," or "the inflicting of pain, physical or mental, to extract confessions or statement' by the police, was 'extensively practiced' across the country. San Francisco police would beat a suspect in the patrol wagon to give him a 'foretaste of things to come if he does not incriminate himself." Detectives in one city suspended a suspect out a second-story window by his ankles until he confessed. Cleveland detectives interrogated suspects in teams working in relays. Suspects were denied sleep and food and 'kept standing, clear of a wall, for many hours." One defendant was stripped naked, make to lie on the floor, and then lifted by his genitals several times. Detroit police put suspects "around the loop," moving them from one station house to another to hide them from family, friends and legal counsel. Many were never even booked. The chief of police in Buffalo, New York openly declared that "If I have to violate the Constitution or my oath of office, I'll violate the Constitution."
So the popularity of the right not to incriminate oneself did not grow out of a vacuum, or out of "bleeding heart liberal ideals," and once again, it was a reaction to oppression. Walter Pollak, one of the authors of that report did not stop there.
"In 1925 he argued
Gitlow v. New York, in which a Court for the first time asserted that the Fourteenth Amendment incorporated the free speech clause of the First Amendment and made it applicable to the states. Other parts of the Bill of Rights were eventually incorporated into the Fourteenth Amendment, and this process of "nationalizing" constitutional rights became the foundation of the subsequent revolution in civil rights and civil liberties."
Pollak didn't stop there. "A year after the Wikersham report appeared, Pollak successfully argued
Powell v. Alabama (1932), where the Court held that a defendant facing the death penalty was entitled to an attorney at trial... Pollak won a second Scottsboro case in
Norris v. Alabama, where the Court ruled that the systematic exclusion of African Americans from juries was unconstitutional."
Can we today say any of these are bad and unjust rulings? Yet, Samuel Walker writes "Critics of
Powell attacked it as an 'unprecedented invasion of state criminal process, and a serious inroad on state sovereignty.'"
The Federalist Society, by definition, wants to give the States the power they once had by "un-nationalizing" these rights. When you hear "it is up to the states to decide," this is what reactionaries mean. So now we know the real goal of the far-Right through the Federalist Society, but how do they go about it? It was very difficult to convince the public such a reactionary position was justified... until the victim's rights movement.
They hijacked it though organizations like
Citizens for Law and Order, Inc. and by removing judges they do not like. It's first big win was the political removal of Chief Justice Rose Bird from the California Supreme Court. The real issue was big business v. farm labor and Justice Bird's overturning of death penalty cases was an effective straw man.
What this means is that there really is
a vast right wing conspiracy and there always has been.
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