April 11, 2005 | The day after Terri Schiavo died, Gallup pollsters began calling Americans to ask them how various national figures had acquitted themselves in the operatic debate over whether to remove the terminally ill woman's feeding tube. The results seem to provide a simple outline of American opinion on the matter. In short, Americans think the Schiavo case was none of their business. The poll, like all other polls on the case, shows that Americans, by an overwhelming majority, don't think it was the president's or Congress' business, either. Asked what issues matter to them, Americans said pretty much the same thing they've been saying for months -- terrorism, healthcare costs, gas prices and the state of the economy. "Changes to how the federal courts handle moral issues" is an issue deemed "extremely important" by only 20 percent of the nation.
Here's the troubling thing: That 20 percent is running the country, and they're now pressing for such changes in the way the courts decide cases. While most Americans are apparently indifferent to the long-term implications of the Schiavo case, many religious conservatives see it as having lasting political utility. Its most important outcome, they say, is in highlighting an unsettling flaw in American governance. They call this flaw "judicial tyranny," though most of the rest of us know it by a friendlier name, "checks and balances."
For the politicians representing this minority -- which is to say, leaders in the House and Senate, if not the president himself -- the Schiavo case presents an opportunity to stem what conservatives frequently call an "out-of-control" judiciary. By "out of control," they mean out of their control; in the Schiavo case, after all, we saw two branches of the federal government succumb to the will of this savvy minority, while a third branch remained determinedly out of reach. Now that third branch is under attack. It is far from clear that the judiciary will survive unscathed.
Conservative legal scholars concede that the Schiavo case does not rank as history's most egregious instances of "judicial activism." Supreme Court decisions on church-state divisions, the death penalty, gay rights and, of course, abortion are still more deeply hated. But the case, with its emotional appeal and saturation media coverage, has clearly juiced the troops at an opportune moment -- just in time for an expected Supreme Court vacancy and for a Senate debate over a Republican plan (aka the "nuclear option") to prevent Democrats from filibustering judicial nominations.
Confronting "judicial tyranny" is now "the great battle of our time," Gary Bauer, the former presidential candidate, wrote in his daily e-mail newsletter a few days after Schiavo died. James Dobson, the influential evangelical leader and founder of the ministry group Focus on the Family, unleashed a 5,000-word attack on the judiciary in the April issue of his Action Newsletter. Dobson writes that "although many fine men and women serve on the bench," their decisions on moral issues illustrate "the heady abuse of power that is all too common among independent fiefdoms known as judges. They rule like royal monarchs. And sitting on the top of the pyramid is the U.S. Supreme Court, which threatens the liberty that was purchased with the blood of countless men and women who died to secure it.
http://www.salon.com/news/feature/2005/04/11/judges/print.html
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