Hail to the Supremes!

Henry Regnery used to be the thinking conservative's publisher, issuing serious books about conservative philosopy, e.g. Russell Kirk. But in recent years the company decamped from the Windy City to the Sodom-on-the-Potomac and has issued a series of best-selling books that make even dyed-in-the-wool troglodyte conservatives blanch, books such as Barbara Olson's posthumous best-seller The Final Days or Gary Aldrich's Unlimited Access. The latest of these screeds intended to preach to the choir rather than convince an audience is Men in Black: How the Supreme Court is Destroying America by Mark R. Levin, who has a radio show on WABC-AM in New York City and is president of the Landmark Legal Foundation in Northern Virginia.

There are a number of little mistakes that grated. He misspells the name of Justice Brandeis, for example. And in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow, he writes of the Supremes that "the Court bent its own rules and gave Newdow permission to argue the case himself." Well, Newdow did go to law school but even if he didn't that's irrelevant. The United States Code, specfically section 1654 of title 28 (the text is here) gives everyone the right to argue his own case in all Federal courts. That Levin is a lawyer and be oblivious to this is suprising. It has only been law since 1911. He also wrongly states Ex parte Merryman was a Supreme Court case. I also saw a case citation that was clearly wrong.

The chief problem is how deeply schizophrenic this book is. Levin denounces Marbury v. Madison, the 1803 case in which the Court declared the right to declare laws unconstitutional. Similar scorn is directed at Roe v. Wade, the abortion case, and Wickard v. Filburn, in which the Court upheld the interstate commerce clause as giving Congress unlimited power to regulate anything and everything. But yet he's delighted when the "activist" Court does things he agrees with, e.g. the 1935 decisions declaring unconstitutional various parts of the New Deal. He approves of the rulings in the "sick chicken" case, Schechter Poultry v. United States; Carter v. Carter Coal; and the Railroad Retirement case. "In these rulings," Levin writes, "the Supreme Court was merely upholding the Constitution and preserving the Constitutional balance between the federal government and the states." Isn't it unprincipled to object to judicial activism but support it when the Court supports your own side.

But essentially, Levin is a defender of the Bush regime, not principle. How else to account for his chapter eight, "Al Qaeda Gets a Lawyer", where he objects to the Supreme Court's rulings in Hamdi v. Rumsfeld and Rasul v. Bush, two cases concerning the prisoners at Guantanamo Bay, Cuba, comparing Bush favorably to Abraham Lincoln's mass arrests and suppression of opposition newspapers. "Indeed, he hasn't taken any actions to silence his critics." There are a lot of people who would disagree with Levin's characterization, to start with the North Carolina college student who the Secret Service called upon for having an anti-Bush poster. (See the story here.) What the Bush administration tried to do was declare that Guantanamo was outside the reach of law, a twilight zone where the government could do anything it liked. Wasn't the whole point of fighting the Revolution to end such tyranny? When President Truman tried to take over the steel industry under his power as "commander-in-chief", the Supreme Court said in Youngstown Sheet and Tube v. Sawyer that he was commander only of the military, not the whole country. Assuming Youngstown is still good law in the eyes of the present government, then the Bush administration position is the government could take away the life and liberty of anyone it liked, but not their property.

Levin also tried to make a distinction between "persons" and "citizens", trying to say that foreigners don't have rights under the Constitution. Just look at the plain text of the Constitution. The Bill of Rights, notably the Fifth Amendment with its guarantees for the accused, talks of "persons" and not "citizens". The Fourteenth Amendment, which he also cites, speaks of both "citizens" and "persons" in such a way that it is clear "persons" have rights too. One rule of interpreting laws is that the authors knew how to draft statutory language and it is clear that his claims about foreigners are bunk.

Certainly there is material that both conservatives and liberals can agree with, notably his chapter ten, "Silencing Political Speech", about the First Amendment Repeal Act of 2002, which the Supremes upheld in McConnell v. Federal Elections Commission. But you know that Levin would have loudly cheered had the Court not deferred to Congress and struck down the campaign finance law. Levin's book is about getting what his side wants from the courts (as evidenced my the long section, including copies of Democratic strategy documents, on appointing right-minded judges to the Federal bench.

It is most decidedly not, as its title implies, a call for judicial restraint. But it is doubtful any but the converted will be reading this volume in the first place. No harm, no foul.