Fundamentalism & the Law

Catherine Crier is a former Texas judge, a conservative Republican and a self-characterized “independent with some libertarian leanings.” And boy, she is angry as a Texas rattler! Her timely new work, Contempt: How the Right Is Wronging American Justice, is a hard-hitting indictment of those who would use religion – specifically fundamentalist Christianity – to advance a political agenda that, in her view, would eviscerate vital legal protections. She also postulates that should the current fundamentalist attacks on the federal judiciary continue to advance, our Constitution-based, secular government will be reduced to a theocracy.

Crier sets the stage for her thesis by focusing on two judges – Florida’s George Greer and Alabama’s Roy Moore. Greer, a devout Baptist and religious conservative, was the judge in charge of the Terri Schiavo case who quietly endured death threats while steadfastly applying the law. Judge Moore, designer of the Ten Commandments sculpture installed in his courtroom, defied a district court by refusing to remove the monument and was later stripped of his chief justice designation by an Alabama ethics panel. Moore’s cause was taken up by a sharply divided Congress, which voted against using federal funds to remove the monument, despite the finding by the federal courts that its presence in Moore’s courtroom was unconstitutional.

Greer has since faded into the Florida background, while Moore is a leading gubernatorial candidate. Moore also assisted in the drafting of the Constitution Restoration Act, which would strip the courts of jurisdiction to hear any case involving the acknowledgement of God by public officials and which calls for the impeachment of judges who ignore it. Moore has said, “Tyranny is putting ourselves above God, and our federal courts and the Supreme Court have done exactly that.” Moore and the extreme right have a plan to put things right.

That plan consists of characterizing judges who do not support their worldview as “activist,” and accusing them of straying from the “original intent” of the Constitution. Once identified, these judges are subject to attack in the press, from the pulpit and by the executive and legislative branches of government.

Public attack and derision is only the first step. According to Crier, the right has more extreme methods of destroying the independent judiciary. Impeachment is the current favorite with House Republicans proposing a congressional task force to review federal judicial decisions for evidence of “abuse.” Term limits, jurisdiction stripping, direct congressional veto, removal of funding and even the abolition of courts and/or federal judicial districts have been proposed. If all else fails to intimidate judges, their courts will be eliminated, making a mockery of the Constitution’s purpose – to “establish justice” – by depriving Americans of a place to seek it.

Crier effectively punctures the liberal “activist” judge appellation as it is applied to the Supreme Court by noting that the Rehnquist court struck down more federal laws than any other in history. The right is fond of advocating the impeachment of judicial activists, but, as Crier notes, there has been no hue and cry for the impeachment of Justices Scalia or Thomas, who have each voted to strike down more federal laws than six of their colleagues.

While this work is far from perfect, Crier’s down-to-earth style will appeal to a wide audience of readers who may ordinarily shy away from a work about the law. Her examination of the founders’ deist beliefs and their effects on the writing of the Constitution and on the early formation of our republic is particularly informative. Crier shines as she puts the lie to the right’s attempts to rewrite this history.