Men in Black

HOW THE SUPREME COURT

IS DESTROYING AMERICA

Copyright © 2005 by Mark R. Levin

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopy, recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in a magazine, newspaper, or broadcast.

Library of Congress Cataloging-in-Publication Data
Levin, Mark (Mark Reed), 1957–
Men in black: how the Supreme Court is destroying America / Mark Levin.
    p. cm.
Includes bibliographical references and index.
ISBN: 978-1-59698-009-9
1. Judges—United States—Popular works. 2. Judge-made law—United States—Popular works. 3. Justice, Administration of—United States—Popular works. I. Title.
KF8775.Z9L48 2004
347.73’14—dc22
2004026156

Published in the United States by
Regnery Publishing, Inc.
One Massachusetts Avenue, NW
Washington, DC 20001
www.regnery.com

Distributed to the trade by
National Book Network
Lanham, MD 20706

For the Levin family: my wife, Kendall; our children, Lauren and Chase; my parents, Norma and Jack; and my brothers, Doug and Rob.

I
wrote
Men in Black
to warn you, my fellow citizens, that our freedoms are at risk from judges who usurp the Constitution. I wanted to help spur a national debate—as I do on my radio show—over the Supreme Court’s role, the judicial oligarchy that increasingly rules over us, and the sort of justices who should be appointed to the Court.

Since the hardcover edition of this book appeared, President George W. Bush has successfully appointed two outstanding individuals to the Court—Chief Justice John Roberts and Associate Justice Samuel Alito. And I believe the public is now more aware of the dangers of liberal judicial activism—and they want something done about it.

The problem, however, remains: judges still routinely usurp power from the other branches of government and act as though they are unconstrained by the Constitution. One recent case in particular underscores the spectacular arrogance and lawlessness of the Supreme Court.

Judicial Land Grab

Wilhelmina Dery had lived her entire life in a house in New London, Connecticut, that her family had owned for more than one hundred years. She was born in the house in 1918. Her husband, Charles Dery, moved in after they were married in 1946. Their son and his family lived next door (in a house that was the Derys’ wedding present). Then, a few years ago, the Derys were told that the city of New London had taken title to their homes by eminent domain and that they had to leave. Eminent domain involves the government condemning and taking private property for a public use.

One of the Derys’ neighbors, Susette Kelo, a registered nurse, found a notice of eviction on her house the day before Thanksgiving in 2000. Why was New London trying to evict them? Well, the city wanted to take their homes (claiming the neighborhood was blighted) and transfer them to private developers, purportedly to improve the area and generate more tax revenue. The Derys, Kelos, and other homeowners challenged the city’s plan and placed their hopes in the Supreme Court—often said to be our great guardian of civil liberties.

The case has become famous for what the Supreme Court failed to do. In
Kelo v. City of New London
, the Court gutted a part of the Bill of Rights called the takings clause of the Fifth Amendment.
¹
The Bill of Rights recognizes certain (albeit not all) important natural rights that we possess as human beings and seeks to ensure their protection. One of these rights is the right to own property. The takings clause provides that private property may not be “taken for public use, without just compensation.”
²
Therefore, if the government takes your land to build a road or military base, it must properly compensate you.

In
Kelo
the issue became the meaning of “public use.” As has happened in so many areas of the law, the Supreme Court made seemingly small, subtle changes to the clear meaning of the words. Over time, this led to dramatic departures from the Constitution’s original meaning. According to the Court’s activists, “public use” really means “public purpose.” And the phrase “public purpose” means just about whatever any government wants it to mean. Five of the nine justices voted to diminish private property rights and expand the power of government beyond its constitutional limits.
³

As Justice Clarence Thomas wrote in his dissent:

While the appointment of more justices who are faithful to the Constitution—lawyers call them “originalists”—to the Court is critical, the problem is that the judiciary has relentlessly expanded its power throughout our history to dictate national policy, especially since the 1930s. The judiciary’s seizure of power has become institutionalized. And it’s the institution that must be addressed.

Is Criticism Forbidden?

The judicial activists who have exercised this enormous power resent any attempt to restrain their authority. They say it’s an assault on “judicial independence” and even on their personal safety. In a speech last year to appellate lawyers, then associate justice Sandra Day O’Connor complained about former House majority leader Tom DeLay (although not by name), because he dared to make the point that “judicial independence does not equal judicial supremacy.” She said that death threats against judges have become increasingly common. (She then referred to Senator Jon Cornyn, again without naming him, because he had complained that judicial activism might contribute to public hostility.) And she said that the “experience of developing countries, former Communist countries, and our own political culture teaches that we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies.”
⁵

The mere discussion of the Supreme Court’s unconstitutional excesses evoked panic from O’Connor, who conflated judicial independence with judicial supremacy, which helps explain both her years of activism on the Court and her disdain for the representative branches. O’Connor drew no line where judicial independence ends and judicial supremacy (tyranny) begins.

I want to be clear. Threats against judges are absolutely deplorable, as are threats against any official in government. Those who make them should be prosecuted to the fullest extent of the law. But I reject O’Connor’s effort to use these threats to bar debate about the judiciary’s role and to intimidate those who think the judiciary is as worthy of discussion as anything else. I have no doubt that the president is threatened frequently. However, criticism of the president, his policies, his power, and everything else about him is robust, if not extreme. And nobody suggests that the debate and criticism have led to the threats on his life.

It’s disturbing and absurd that O’Connor would attempt to lump Court critics with the strong-arm tactics of former Communist regimes. If anything evokes the Communist Politburo model, it is not critics of the Court, but nine robed lawyers who can stand in unchallenged judgment on virtually any issue or activity in which they wish to intervene. But O’Connor is not alone in arguing for an unconstrained Supreme Court.

On February 7, 2006, Associate Justice Ruth Bader Ginsburg, a former top lawyer for the American Civil Liberties Union, gave a speech in which she strenuously supported the Court’s use of
foreign
law in its proceedings. She denounced efforts to pass congressional resolutions that would prohibit federal courts from engaging in such unconstitutional behavior (unconstitutional because judges are limited to applying U.S. law to most cases and controversies before them). And like O’Connor, Ginsburg attempted to smear opponents of her activism by linking them to death threats. She said, in part, “These [congressional] measures recycle some resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern—they fuel the irrational fringe.”
⁶

I and other originalists argue for a federal government with limited authority, as compelled by the Constitution—and that includes a limited, defined role for the judiciary. And most Americans who read the Constitution for themselves agree. The public is fed up with judges who use their office to exercise power they don’t have and who look outside the Constitution to foreign laws and courts for guidance. Under our republican form of government, the people, through their representatives, determine our laws, not judges. Yet Ginsburg, like O’Connor, is blinded by her arrogance and self-righteousness and cannot recognize this plain fact. She prefers to lash out at her critics while providing no evidence to support her allegation that congressional criticisms and proposals have led to threats against her or any other justice.

The framers assumed that all three branches of government would jealously guard their power. While we see this play out every day between the executive and legislative branches, Congress has done little to restrain the judiciary. Most liberal politicians applaud judicial activism, because judges unencumbered by constitutional limitations use their activism to impose a liberal agenda on society, saving liberals the trouble of winning elections. Most libertarian scholars support an activist judiciary as a counterweight to majoritarianism, which they believe is a greater threat to liberty. And most elected Republicans prefer to complain about court decisions rather than actually do something about judicial abuse, lest they be admonished by the media, academics, and Supreme Court justices themselves.

Former Nevada senator and Ronald Reagan confidant Paul Laxalt once told me that each day Congress meets, we lose a little bit of our liberty. I would add that each day the Supreme Court is in session, the Constitution is threatened. Of course, like Congress, the high court is not always wrong or all bad. But when the Court misfires, it does enormous damage that is extremely difficult to reverse. In the past the Supreme Court has endorsed slavery, segregation, and internment. And now it endorses the seizure of your home.

While the people can redress congressional and executive misbehavior at the ballot box, the judiciary is unaccountable and out of reach. As I point out in this book, the concentration of so much power in a mere nine lawyers—well beyond the framers’ intent—undermines our system of government and the people’s faith in a judiciary that is so obviously out of control.
Men in Black
is a call to reform our judiciary and restore our constitutional government as envisioned by the framers and supported by the people.