The Strange, Ill-Informed Cowardice of Phyllis Schlafly

Apparently you all didn’t find the special congressional race in upstate New York — or its would-be recount, and the potential fallout for New York’s new voting systems — all that interesting. For shame! That stuff was cool. Anyways, in partial atonement for my sins, this commentary on Phyllis Schlafly’s latest insanity (h/t Pi).  – Ed.

Federal courts play a curious part in modern America. Post-Brown, they can be engines of great good, leading the nation to justice in spite of herself, or, with just as much nobility of purpose, they can push too hard, galvanizing a dying movement and forcing culture war combatants back to the trenches.

What’s to be done? For hard-line conservatives, the answer, as in so many other cases, is to give up. Hence the far-right fascination with “jurisdiction-stripping,” the process by which Congress restricts the federal courts’ trial or appellate jurisdiction over particular issues. Strip all federal jurisdiction over school prayer, and bam! Problem solved, so much for that pesky First Amendment!

While a move like that would be troubling indeed, jurisdiction stripping has its uses. It’s a hell of a way to control docket congestion: with one stroke, Congress could (but won’t) eliminate wasteful and insulting litigation. And it’s not without history: during Reconstruction, Congress revoked military detainees’ rights to petition the Supreme Court directly for habeas corpus (ordinary habeas remained undisturbed). See Ex Parte McCardle, 74 U.S. 506 (1869). More recently, the Military Commissions Act of 2006 stripped federal courts of the ability to hear habeas petitions brought by Guantanamo detainees (§ 7) — before this provision, specifically, was ruled unconstitutional. Boumediene v. Bush, 558 U.S. ___ (2008).

Schlafly’s article — advocating for a re-stripping of federal jurisdiction over detainee trials — is thus a fascinating look at what happens when one ignores recent Supreme Court decisions, and glosses over earlier history. Boumediene, decided just over a year ago, explicitly forbids her proposed solution, and McCardle, upon which better-educated advocates of her position usually rely, doesn’t help, if you look just below the surface. The McCardle Court did little more than eliminate a novel vehicle for habeas corpus — it never terminated habeas altogether.

Besides, fear — be it of the deranged ramblings of a madman, or of a potential acquittal that’ll never happen — is a poor reason to do anything, and a particularly abysmal reason to surrender our values, and begin putting conditions on our faith in democracy.


  1. It’s always so strange when the ancient culture warriors talk about other issues. They literally have no idea what they’re talking about.

    A really good source for that kind of tripe is the Concerned Women for America website, because they wade out of the culture wars pretty often, with uniformly ridiculous results.

  2. I do find the idea that Congress can constitutionally legislate on what the courts can rule, but the courts rule on whether that legislation is constitutional slightly paradoxical.

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