Newt's Proposals on the Courts

Newt Gingrich's ideas on what to do to reign in activist courts have been gaining a lot of fire from both the Left and Right.  In a White Paper recently released by his campaign, Gingrich argues for repealing certain federal courts, ending the concept of judicial supremacy, stopping the influence of foreign law in interpreting the Constitution, and having judges come before Congress to explain their decisions.  From the Right, Michael Mukasey has attacked Gingrich's arguments as outrageous; commentators on the Left have assailed the Gingrich plan as destroying the principle of separation of powers.  Apart from this loud noise on both sides, Gingrich raises important questions and arguments that are worthy of closer study.

His argument against the doctrine of judicial supremacy is needed today more than ever.  In the vein of Lincoln's argument against adhearing to the principles articulated by the Supreme Court in Dred Scott v. Sandford, Newt argues that the High Court was never meant to have the final say over all things constitutional.  Alexander Hamilton said as much in Federalist #78 when, ameliorating concerns over the potential power of the judiciary, he stated that the courts have "neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."  Gingrich correctly points to the Supreme Court's opinion in Cooper v. Aaron (1958) when the Court declared themselves the final arbiter of the Constitution.  As some have argued, Gingrich is not arguing against the concept of judicial review, which was articulated by Chief Justice John Marshall in Marbury v. Madison (1803) and rises out of the logic of the law:  He is arguing that the executive and the legislature are co-equal in their ability to interpret the Constitution.

Also, as Matt Frank and Ed Whelan argue on Bench Memos, Gingrich is correct to assert "that judicial misbehavior–the abuse of judicial power itself in the course of decision-making, not merely the use of its possession as an opportunity for corruption or criminality of other kinds–is potentially an impeachable offense."  They bring up a great example:  What if a justice decided opinions by something as arbitrary as flipping a coin?  Surely how a justice interprets the Constitution is important, even sometimes more important, than the final decision that they may come to. 

Gingrich's proposal to put judges who have been thought to have issued unconstitutional opinions before Congress is less convincing.  Here is Andy McCarthy, who has really been on fire lately, with more on this topic:

Consuming all the oxygen, and thus distorting the proposal, is the sideshow prospect of hauling federal judges before Congress to compel them to explain particularly atrocious rulings. That this would violate separation of powers is obvious. The worst aspect of this tempest, though, is its pointlessness. Judges always explain their rulings in written opinions. The problem is that the explanations depart grossly from the original understanding of the Constitution and the modest role of judges in a free society — not that we don’t know what the explanations are and can’t grasp them absent some theater of the absurd.

And in his latest column, Hadley Arkes argues that Newt's promise to not overturn Roe v. Wade is puzzling considering his prior argument regarding the power of the co-ordinate branches in interpreting the Constitution.  Here is Hadley:

Newt’s White Paper recalls that understanding of Lincoln’s. Gingrich would apply it in countering the Equal Employment Opportunity Commission if the courts hold that this agency has the authority to interfere with the firing of “ministers” in churches. The Gingrich paper makes no connection on this point to abortion. And yet the connections are many. 

A decision had to be faced years ago as to whether research in the National Institutes of Health could be confined only to tissue drawn from fetuses in spontaneous abortions. But a committee appointed by the Reagan administration did not think it could rule out the tissue that came from elective abortions. 

And yet, if Lincoln’s view was right – and I can’t see how it could be wrong – a new administration could say that it doesn’t accept the principle articulated in Roe v. Wade; that this administration will not affirm a right to kill offspring in the womb and withdraw them from the protections of the law.

Although Gingrich does overreach in some of his arguments along the way, he is at least serious about beginning an important and much-needed conversation about the role of the courts in our constitutional republic.