Courts decide cases involving all aspects of American life. In many respects, they are more important than the President or Congress because in reality the power to “interpret” the law is the power to make the law. We have gay marriage and gay civil unions in America today; your local politicians can take your home thanks to the Supreme Court’s Kelo decision; many Americans have no right to own a gun for self-defense, and you can abort an unborn child but can’t destroy spotted owl eggs. All this wackiness thanks to our left-leaning courts.
What can conservatives do to prevent these sorts of damaging decisions like the ones you talk about on gay marriage and eminent domain?
In Disrobed I lay out a brand-new battle plan to bring the Reagan Revolution to America’s courts—the last, and most important, area of government remaining to be conquered. Unless we adopt Ronald Reagan’s Cold War strategy (“We win. They lose.”) in the courts, brace for more liberal lunacies from our friends in black robes.
The battle plan you lay out in Disrobed calls for strategies and weapons that conservatives have typically avoided. Are you departing from the conservative movement on the courts when you argue that conservatives must engage in principled conservative judicial activism, learn to the love the living constitution, and sue liberals more?
I proudly support the goals and agenda of the modern conservative movement—in fact, I’m a card-carrying member of the Vast Right-Wing Conspiracy! But in Disrobed I part ways with our long-held but self-defeating strategies and tactics concerning the courts. We need America’s courts to be an ally of conservatives and the American way of life, not our enemy—which is what they are right now.
What made you change your mind about the conservative approach to the courts?
In my day job, I am a New York litigator who battles in America’s courts for real clients, so I understand how courts, judges, and lawsuits work in the real world. I also hate losing. So when I see liberal lawyers and judges foisting their political agenda upon the nation, I get quite angry and realize something must be done. Unfortunately, the current conservative “conventional wisdom” about the courts (such as embracing judicial restraint and strict constructionism) can’t work in the real world. That’s why I wrote Disrobed.
Why can’t “strict constructionism” and “judicial restraint” work in today’s world?
Like it or not (I don’t like it), we live in a world in which the courts and American law have become completely untethered from their original constitutional moorings. The federal government is a leviathan with virtually unlimited powers and courts are hardly the “least dangerous” branch. The right of a minor to receive an abortion receives more constitutional protection from the courts than the right to own your home or a gun to defend your family. So what do we do? Start asking conservative judges to actively defend the American way of life against loony liberal laws. We can’t fool ourselves into thinking that courts aren’t political; the Left has made them political battlegrounds, and we need to fight back at last.
Why is “judicial restraint” undesirable?
Think of it this way: Decades of liberal judicial activism have dug conservatives and the nation into a deep, deep hole. Getting judges to practice judicial restraint, even if it were doable, would only amount to putting down the shovel. So sure, the hole doesn’t get deeper, but you are still stuck way down in the hole. We need conservative judicial activism to fill back in the hole of America law.
What do you say to conservatives that disagree with this new approach?
I ask them what Dr. Phil would ask them about the current conservative approach: “How’s that been working for you?” If you think the court system is moving in a positive direction, then keep going down the old-school path. Otherwise, buy a copy of Disrobed.
What are some types of conservative judicial activism you’d like to see?
Striking down urban gun control laws, cutting back on business regulations, and protecting American taxpayers against government overreach. It would also be great fun to see a conservative activist judge take over a failing school district and impose a school voucher program, or perhaps a judicial ruling “in the name of diversity” requiring colleges to adopt affirmative action policies in favor of conservative professors.
Have conservatives made great strides with the confirmation of Samuel Alito and John Roberts to the U.S. Supreme Court?
Not really. It’s a nice start but we have a lot more to do. There are 19,000 judges in America interpreting and applying a “rule of law” that is infected by decades of liberal judicial activism. We need decades of conservative judicial activism to undo the laws on the books from decades of liberal judicial activism. When courts start to strike down gun laws and economic regulations, then we can talk about “great strides” in the courts. Disrobed shows how we can achieve that.
Can ordinary conservatives contribute to the fight for the courts?
Yes. For starters, remember that Harriet Miers isn’t on the Supreme Court today because of the grassroots. And the courts are far too important to our lives to be left to politicians, judges, and lawyers. How can we contribute? For starters, 39 of the 50 states have judicial elections. That means most of us have a direct say in who’s deciding the issues that are most important to our families and communities. And in Disrobed I show many more ways that you and I can contribute, often in unexpected ways.