A potentially harmful family quarrel has broken out among critics of judicial activism. The spark: a symposium entitled "The End of Democracy?" in the November issue of the conservative journal First Things. The premise of the symposium—that the judicial overreaching of recent decades amounts to a "usurpation of politics"—surprised no one among the magazine's friends. But the range of possible responses discussed in the five articles was unexpectedly radical, "from noncompliance to resistance to civil disobedience to morally justified revolution," as editor Richard John Neuhaus summarized them in his introduction. Father Neuhaus himself did not hesitate to use strong language: "America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here."
This apparent challenge to the very legitimacy of the American political order set off a firestorm among conservatives. The distinguished historian Gertrude Himmelfarb and Neuhaus's old friend, sociologist Peter Berger, angrily resigned from the magazine's editorial board, and American Enterprise Institute constitutional scholar Walter Berns withdrew from the editorial advisory board. Norman Podhoretz, the retired editor of Commentary, issued a heated protest: "I am appalled," he wrote to Neuhaus, " by the language . . . you use to describe the country, especially your own reference to Nazi Germany; by the seditious measures you contemplate and all but advocate; and by the aid and comfort you for all practical purposes offer to the bomb throwers among us."
The controversy escalated in December, with Jacob Heilbrunn's incendiary article in The New Republic, portraying the dispute essentially as a conflict between Christians and Jews. Nor did the symposium on the original symposium, in the January issue of First Things, clear the air; despite measured, well-reasoned comments by William Bennett, Mary Ann Glendon, and John Leo, other contributors chose to up the rhetorical ante.
Surely it is time for deep breaths and reflection all around. Father Neuhaus and his authors may wish to consider several things. While it is true that the judiciary has taken far too many choices away from the American people and their elected officials, ordinary politics still determines most policy. Furthermore, allusions to Nazi Germany in criticizing America are always ill advised, even if followed by an instant disclaimer. Finally, we are most effective in opposing judicial activism precisely when we invoke the American constitutional tradition itself—when we speak in the idiom of The Federalist, Jefferson, and Lincoln—not when we stand outside it.
As for the critics of the First Things symposium, they must acknowledge that a quarter century of merciless intellectual exposure, high levels of public disapproval, conservative electoral victories, and ten Republican Supreme Court appointments have done very little to curb judicial activism. If Father Neuhaus and his authors overstate their point, their critics may underestimate the seriousness of the situation. Unless we find some more effective way to oppose the arrogant elites who work their will on the rest of us through the judiciary, we will eventually have to revisit—more soberly—the serious questions that First Things raises.
