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Where Newt's wrong--and where he's right

Newt Gingrich's attack on the judiciary is doubly unfortunate. It would be bad enough if it were simply wrong, but it's worse than that because there are kernels of legitimate grievances in Gingrich's critique that are buried in a decidedly radical view of the Constitution that would obliterate checks and balances and the ability of that document to protect limited government.

Let's start with the more wrongheaded aspects of the Gingrich analysis. Why attack Cooper v. Aaron, of all cases? That's a simple application of the Supremacy Clause: when the states and the federal government conflict, the federal government wins. That's before you get into the political problems of being perceived as defending racial segregation and opposing the Fourteenth Amendment powers of the federal government to end it. Whatever dog whistle advantage one is hoping to gain in the primaries will be more than overwhelmed by the soundbites used to alienate independents against you in the general election.

Ed Whelan and Matthew Franck have more than adequately refuted Gingrich's idea that Congress can remove judges by defunding judgeships; that's just incorrect as a Constitutional matter.

The "two out of three" rule—whereby Congress and the Executive could collude to override a Supreme Court decision—would have extraordinary consequences. A Democratic Congress and President want to ban guns? Any willingness of the Supreme Court to preserve the Second Amendment would have no effect. Congress wishes to pass the Elena Kagan Memorial Eat Your Vegetables Law? If the president signs it, what could the Supreme Court do? Beyond that, Congress could vote dictatorial powers for the president, cancel elections, bar speech criticizing incumbents (or just one political party)—two-out-of-three, so Congress passing, and the president signing gives the Court nothing to say about the matter. That's a lot of protection against Leviathan to give up just for the momentary satisfaction of overriding First Amendment protections against mandating that minorities participate in Christian school prayer.

What Gingrich doesn't understand is that the Constitution requires three-out-of-three agreement before limited government can act: Congress has to pass a law, the President has to sign it (with some rare veto override exceptions), and the judiciary has to be satisfied that the law is not outside the scope of the government's limited powers. As Roger Pilon points out, when Gingrich expresses upset at the overaggressive New Deal laws the Supreme Court signed off on, it was Congress and the President who acted outside their powers, and the Supreme Court that failed to act.

Where we need to distinguish is between legitimate judicial action—the exercise of the Article III judicial power to protect the citizenry from unconstitutional exercises of government power—and judicial activism, the misuse of the judicial power to act as a superlegislature to create new causes of action or to overrule legislation or constitutional provisions thought unwise. Part of the problem is Congressional laziness, a tendency to punt issues to the Supreme Court with poorly drawn legislation that grants large swaths of judicial discretion to interpret Congressional commands; for that, see Nick Rosenkranz. But the larger problem is judicial aggrandizement: courts dictating how prisons or school systems are to be run, finding ways to thwart the popular will for capital punishment, engaging in other social engineering outside of the legitimate judicial power. There, Gingrich has a smaller point: the original constitutional checks and balances have dissipated. He's correct that part of the solution is the appointment of judges that respect the rule of law, though that is an unfortunate uphill battle, given the enmity of much of the legal academy and one of the political parties to that position. But the other is to end the Congressional abdication of its impeachment authority.

As I pointed out five years ago, the 21st-century notion that "judicial independence" meant that judges were above Congressional criticism is a recent invention. The Founding Fathers anticipated that judges would get too big for their britches, and further anticipated that the check on such judicial aggrandizement was Congressional investigation and impeachment. As Alexander Hamilton wrote in Federalist No. 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

This is an important potential reform that could do much to solve the problems of overreaching judges were it to become a once-again accepted mechanism. (That's quite some time away: there's not even a substantial minority, much less a two-thirds majority, of Congress that buys into this aspect of the constitutional structure.) It's a crying shame that that signal is being buried by the noise of the rest of Gingrich's wrongheaded proposals and the way he's selling these issues. Judge Mukasey is right: the Gingrich proposal needs a red pen taken to it.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.