Monday, December 5, 2011

Newt Gingrich's Crusade Against the Courts

As I've pointed out before, politicians love issues that allow them to exploit fears and emotions without alienating large blocs of voters. Few such issues have given conservatives as much mileage in recent years as immigration, and Newt Gingrich should be commended for breaking from the ranks. Not only has he articulated a humane, reasonable immigration policy, he has also rejected one of the most reliable tools in the conservative arsenal for scoring cheap political points. So he uses the courts instead.

Gingrich describes his attitude toward the courts in section nine of his 21st Century Contract with America, which begins with the intriguing proposition that the Constitution serves as both the framework for the federal government and a set of power rankings:
The Judicial Branch did not come until Article III because the Founders wanted it to be the weakest of the three branches.
Thus, the Legislative and Executive branches get to square off for the championship, while the Judiciary will take on the Ratification Clause in the Fiesta Bowl.

Anyway, back to Newt:
The Federalist Papers explicitly recognized that the Judicial Branch would be weaker than the Legislative and Executive Branches. In Federalist 78, Alexander Hamilton wrote reassuringly that the Judicial Branch would lose any confrontation with the two elected branches:

“the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges.
A good rule of thumb: Never take a 25-word excerpt from a 223-year-old essay at face value. Short and to the point? Just one semicolon? No pointlessly elaborate double- or triple-negations? That's not the Alexander Hamilton I know. Here's the whole sentence (and here's a link to the full text):
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
Something tells me Newt didn't omit that last clause for the sake of brevity. It seems Hamilton's point wasn't that the judiciary should be weak, but that because it neither writes laws nor commands armies it is inherently weak, and therefore additional protections must be in place to ensure its equality with the other branches.

Newt's insistence that the judiciary was intended to be the weakest branch is, at best, dubious, but even more dubious is his insistence that the judiciary is now the strongest:
Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary began to act on the premise of “judicial supremacy,” where courts not only review laws, but also actively seek to modify and create new law from the bench. The result is that courts have become more politicized, intervening in areas of American life never before imaginable.
Really? The power of the judiciary has increased at the expense of the other two branches? We are talking about the same legislative branch that now uses the Commerce Clause to do any damn thing it wants, right? And the same executive branch that has decided it can unilaterally go to war? If anything, the courts have struggled to keep up.

But that's not how Newt sees it, obviously, and his campaign recently released an issue paper detailing his fears. From the introduction:
If the Supreme Court ruled that 2+2=5, would the executive and legislative branches have to agree? Would we have to pass a Constitutional amendment to overrule the Court and reassert that 2+2=4?
Yes, we would. And while we're at it, we should also pass an amendment prohibiting toddlers from serving on the Supreme Court.[1]

Still, Newt's right that it can be scary to think about how much power is held by just nine people. And they aren't even elected, so those seats can be held by anyone! Well, anyone who can secure the nomination of the President, who is elected by a college of 538 citizens, who are in turn elected by the voters of each state, and who can then secure the approval of the Senate Judiciary Committee and at least 51 members (60 if the filibuster's in play) of the full Senate, each of whom are elected by the voters of their states.

Honestly, the more I think about it, the scariest thing about the Supreme Court isn't that the Justices are unelected; it's that they're chosen by the people who are.[2]

But that's a discussion for another time. Much of the issue paper (which, at 54 pages, could really use a table of contents) is devoted to making the case that on issues like national security and marriage (and probably others—seriously Newt, table of contents next time) the courts have abrogated their duty to uphold the Constitution. These are, of course, among the most controversial issues of our time. Legal scholars have written thousands of pages in support of a variety of approaches to the constitutional questions they present. So when Newt says "[w]ere the federal courts to recognize such a right [to same sex marriage], it would be completely without constitutional basis," he's stating an opinion, not a universally-accepted truth. 2+2=4 is an accepted truth. That the Fourteenth Amendment's guarantee of equal protection doesn't extend to discrimination based on sexual orientation is not.

And that's what this all comes down to. The problem he's describing—judges usurping the other branches, creating their own laws, ignoring the Constitution, etc.—is very serious. It just isn't real.[3] Clearly, Newt doesn't like some of the interpretations courts have applied to the Constitution, and in many cases neither do I, but I remain unconvinced that there's an epidemic of judicial roguery going on. There is, perhaps, an epidemic of judges interpreting the Constitution in ways Newt Gingrich disagrees with, but the solution to that is not to launch a crusade against the judiciary. The solutions are to (a) become President and appoint judges you like, and (b) calm the hell down, because there will always be people in positions of power who disagree about things.

But then he'd have to find something else to get people riled up about.

1. Of course, the Court doesn't have jurisdiction over disputes of simple arithmetic, but you wouldn't expect a toddler to know that.
2. Interesting that the officials who play a role in the judicial nominating process—the President and the members of the Senate—originally weren't elected by the people. Senators, of course, were chosen by state legislatures until 1913. The President is elected via the intermediary of the Electoral College, and a state's Electoral College delegation was, and still is, selected by a method of each state's choosing. Until around the 1820s a lot of states let their legislatures make that decision as well.
3. Well, some of it is real, but the severity is vastly overstated. Aside from the preposterous 2+2 hypothetical, the most absurd judicial overreach I've seen Newt talk about is that story out of San Antonio, where Judge Fred Biery ruled that a high school valedictorian couldn't include a prayer in her speech and that the school couldn't use terms with religious connotations like "amen" or "benediction". The ruling was overturned by a higher court two days later.
    So now Newt wants that judge impeached, which is fine, I guess—I suspect there's more to the story that we aren't hearing, but I don't care enough to find out—but how is that a major issue? (Answer: It's not. But the more Newt talks about it, the stronger the implication that this is a widespread problem, rather than a few isolated events.)


  1. Newt makes a good point, but I think the problem is in the liberal bias and over supply of law schools. I had 2 close friends and a nephew who all went to law school as intelligent, functioning productive citizens, and they came out as illogical, left wing, morons. Be careful! Law school causes brain damage!