The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault

Book by Dierker Jr Robert H

Chapter 1
The Cloud Cuckooland of Radical Feminism

Differences [between men and women], including the products of social inequality, make unequal treatment not unequal at all.
—Catharine MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law Journal, 1991

This most illiberal Court . . . has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law.
—Justice Antonin Scalia, dissenting, United States v. Virginia (1996)
Do you think judges should be able to write freely about the law? Do you think that judges should sound the alarm if radicalism threatens to hijack the legal system itself?

Do you think judges should be truly independent of any dominant legal elite?

I believe that judges can and must write freely about the law, and that they have a positive duty to resist political forces that try to take over the legal system. I believe that judicial independence actually means more than never having your salary cut—that it means speaking and writing about threats to that independence from any source.

I have taken an oath to support the Constitution of the United States. I cannot in good conscience sit idly by and watch the destruction of that Constitution by a judiciary that is no longer independent. Despite a tradition of silence by judges on such topics, I can no longer keep quiet about what I, as an insider, have seen happening in, and to, our courts. I may be accused of unethical conduct and threatened with professional discipline, as I was in the past. If that is a risk I must take, so be it. Others before me have taken much greater risks in defense of republican government.

I have witnessed liberal totalitarianism on many fronts as both a lawyer and a judge, but it is fair to say that I probably would not have written this book if I had not had my own, very direct run-in with the tyrants of tolerance. That unpleasant personal experience forced me to do some serious thinking about what is happening to American law, how it is happening, and who is making it happen. And finally it convinced me to write this book, and to accept whatever consequences came from publishing it.

That run-in occurred when I dared confront one of the most active elements of liberalism: the radical feminists.

“Manifesting Bias”

If Social Security is the “third rail” of American politics, then sex is the third rail of American law. Anyone who touches it, except in the manner approved by the tyrants of tolerance, is fried. In this realm, the tyranny of tolerance is best described as rule by the radical feminist cadre of liberalism. Like the rest of the illiberal liberals, femifascists display single-minded devotion to imposing their tyranny on the American people—and will viciously punish those who resist.

I learned this from painful experience.

In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limi- tations that now barred the employment claims.

I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.

Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.

In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”

I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.

Although I did not expect liberals to applaud my opinion, and I probably expected a certain amount of controversy, I was comfortable with the complete freedom judges have had historically to say what they thought about the law. When writing opinions, especially on issues where precedent is unclear or conflicting, judges have a unique opportunity to criticize the parties’ theories and to explain or instruct the public concerning the state of the law. I felt particularly comfortable because my dicta did not control my legal analysis of the main issue. I was doing nothing unusual—or so I thought. (My opinion is included as an appendix to this book, so you can see exactly what I wrote.)

Prepared for public criticism, I was unprepared for what actually happened. The opinion did not become the subject of open debate, but rather, I learned later, radical feminists began working behind the scenes within the St. Louis legal community to attack my integrity and accuse me of official misconduct for writing the opinion. (Never mind that, to this day, no competent lawyer has contended that I distorted the law in reaching the result that I reached.)

In Missouri, judges are subject to investigation and discipline through a body known as the Commission on Retirement, Removal, and Discipline. Unbeknownst to me, liberal Democratic governor Mel Carnahan had appointed virulent radical feminists (or “femifascists”) to that body, women who openly expressed contempt for men and pressured judicial nominating commissions charged with selecting judges to discriminate against men. The femifascists thus had an ideal forum in which to mount their secret attack.

Some months after filing my opinion in the harassment case, the Discipline Commission notified me that someone had filed a complaint alleging that my opinion showed “preconceived bias against women, female lawyers, or sexual harassment suits.” Under Missouri rules, I was not allowed to see the complaint itself or to know who filed it.

Although I can honestly say that I did not react to the complaint with the frenzied groveling of, say, Harvard president Larry Summers after he foolishly speculated about differences in scientific ability between men and women,1 I confess that I did beat a retreat of sorts. Perhaps it was weariness after two grueling years as chief judge of my circuit (elected unanimously, I might add, by a highly “diverse” court), perhaps it was fear or shock at the use of this weapon against me, but I simply wanted the matter put to rest. So in my response to the Commission, I acknowledged the polemics and promised that I would use more care in expressing myself in the future (self-censorship?). In the end, the Commission did nothing but send me a “reminder” to avoid language that “might” give rise to an “appearance” of bias in performing my official duties. (For the sake of full disclosure, I also include this correspondence in the appendix.)

In retrospect, I should have been prepared to sue the Discipline Commission to vindicate the absolute right of judges to express their views in their opinions. After all, don’t judges have the right and duty to “say what the law is”? If they can’t say what they think, what happens to judicial independence?

As horrifying as I find the prospect that the tyranny of tolerance can force judges to censor themselves (and conceivably even adjust their rulings) to avoid the liberal hammer, I can’t say I hadn’t been warned that this possibility existed. But such warnings made no sense to me given the freedom judges have long enjoyed to express their views on the law.

The warnings came from several lawyers shortly after I was elected chief judge of my circuit. These attorneys were aware that in 1992 I had written a scathing review of a report issued by the Missouri “gender and justice” commission, which was set up in the early 1990s to study Missouri courts and laws for sex bias and to recommend cures. Femifascists had successfully pressured state and federal courts around the country to create such commissions. The Missouri commission, like those of other federal and state jurisdictions, was under the thumb of radical feminist...