Neither Left nor Right but Catholic
NEWT GINGRICH ON RESTRAINING JUDICIAL POWER: IN LINE WITH THE CONSTITUTION (MOSTLY)
By Stephen M. Krason
Republican presidential candidate Newt Gingrich caused a stir during a media interview when he set forth his ideas about how the excessive exertion of judicial power should be checked. Among his claims were that a president could ignore unconstitutional U.S. Supreme Court decisions and that Congress could subpoena federal judges to make them justify questionable decisions and abolish lower federal courts. He was subsequently attacked for threatening judicial independence, and his comments were called “radical,” “frightening,” “irresponsible” and “outrageous” (these last two responses were from two former Republican U.S. attorneys general).
Are such views truly radical or likely to undercut judicial independence (which, as I state in my forthcoming book The Transformation of the American Democratic Republic, was a central principle that the Founding Fathers believed necessary for sustaining republican government)? The answer is, for the most part, no. They are also mostly well grounded in the provisions of the Constitution and in earlier American history.
As usual, the reactions divided on political lines and people evidently did not take the time to examine actually what he advocates. Some of the strongest criticisms of Gingrich, not surprisingly, came from left-leaning commentators and publications. One wonders if their writers and editors would express the same views in looking back at FDR’s court-packing plan of 1937. One of the former attorneys general, Michael Mukasey, is a Mitt Romney supporter. (Don’t expect Romney, by the way, to refuse to follow unconstitutional court decisions; as Massachusetts governor he didn’t lift a finger to resist the state Supreme Judicial Court’s invention of a state constitutional right to same-sex “marriage.”) Few seemed to study—if they even mentioned it—Gingrich’s scholarly and well-documented 54-page position paper on how the courts have overreached their authority and the constitutional and historical basis for different ways to redress that.
First, he calls for the appointment of “originalist” judges. While one must recognize that constitutional provisions are not always crystal clear and the intent of the Founding Fathers sometimes obscure, most people believe that the Constitution cannot simply be changed by the courts. Its basic meaning and principles cannot be transformed, even if it has to be adapted to a degree to obvious changing circumstances. For example, it not a problem after World War II to set up an air force even though some said the Constitution did not provide for it.
Still, we cannot just say that originalism means rejecting an “activist” judiciary. I’ve long favored a judicial activism that strongly—if prudently—promotes the natural law principles that America was founded on. I’m for a “restraintist” judiciary when it comes to, say, decreeing ersatz rights—such as abortion, sodomy, and same-sex “marriage”—which are found nowhere in our constitutional tradition and are, in fact, often antithetical to it. One hopes that Gingrich understands these two faces of judicial activism.
A couple of other Gingrich proposals are hardly controversial, although they require a seldom-seen proactive stance by the political branches in protesting judicial actions. One is that the president should order the solicitor general (who’s in charge of arguing the federal government’s cases in court) to join litigation—that, say, might be initiated by a state or a legal advocacy organization—to seek to overturn unconstitutional judicial precedents. That could be more important than it seems because when the government joins a side in a federal court case it enhances that side’s chances of winning. The second is, simply, that Congress and the executive should routinely issue resolutions and statements opposing what they believe are unconstitutional court decisions. Gingrich believes that such statements could exert moral pressure on the courts. The problem would be to get both branches to agree, which especially would not be easy in an era of divided government.
Other Gingrich proposals are indeed more daring—but only in light of the fact that the political branches historically have been so lethargic in resisting judicial encroachments. He wants Congress to put limits on federal court jurisdiction—that is, to take away their power to decide cases on certain topics on which they have issued problematic rulings in the past. Thisis much talked about, but seldom done. Article III of the Constitution clearly authorizes Congress to do it. After the Civil War, Congress removed jurisdiction over cases concerning federal Reconstruction policy. While his proposal that Congress abolish federal judgeships and even lower federal courts may sound like a far reach—and Gingrich’s position paper says it “is warranted only in the most extreme of circumstances”—there is no question of its constitutional soundness. The lower federal courts are entirely creatures of Congress. They were established by Congress—the district courts at the beginning in the Judiciary Act of 1789 and the appellate courts not until the late nineteenth century—and could be abolished by it. The only court prescribed by the Constitution is the U.S. Supreme Court, but only the chief justice’s position is mentioned. Congress determines the number of associate justices, or even if there will be any.
In addition to Congress subpoenaing federal judges, Gingrich also says that it can withhold funds that the federal courts need to carry out certain decisions and also impeach federal judges who hand down unconstitutional decisions. He asserts that the president can order executive branch agencies to view problematical court decisions as limited only to the parties in question and not as establishing a precedent that they must follow. He insists that it is in “very rare circumstances” that the president can ignore a court decision.
As Federalist 78 says, the executive has the sword and the legislative has the purse; the courts have “no influence” over either. There is no doubt that Congress can use funding to resist judicial encroachment, or that a president can refuse to carry out their edicts. Not having the sword means that judicial decisions are not self-enforcing; they require complicity with the executive to carry them out. For example, if the Supreme Court ordered the president to accept open, practicing homosexuals into the military or put women in combat roles, he could simply refuse in light of his role as commander-in-chief. Let’s remember what Andrew Jackson said when the Cherokee Indian decision (1831) was handed down: “John Marshall has made a decision. Now let John Marshall enforce it.” Chief Justice Marshall couldn’t, and it wasn’t.
In saying that a judicial decision is limited to the parties before it, Gingrich is merely echoing what Abraham Lincoln asserted about the Dred Scott case. Lincoln said that if that decision were viewed as binding the political branches for the indefinite future, the people would have “ceased to be their own rulers.” As far as impeachment goes, it is generally agreed that it does not require the commission of a great crime and the position paper mentions how Federalist 81 and the great Justice Joseph Story said it could be used to restrain the courts. Still, the Jeffersonian Era set a precedent that it would not be easily invoked against judges.
It is important to keep in mind that open resistance to the courts could very easily be abused and then subvert the separation of powers in the opposite way: by over-embellishing executive and legislative power. It must be used only in the cases of blatantly unconstitutional decisions and obvious overreaching of judicial authority (such as the Colorado judge who is telling the state government that it must massively increase its funding of public schools). Gingrich demonstrates his awareness of this when he couches his proposals in such terms as “in certain” or in “very rare” or in “the most extreme of circumstances.” The only of his ideas that is troublesome is the subpoenaing of federal judges. This is unprecedented, and indeed could be damaging to judicial independence. Otherwise, what Gingrich is seeking to do is redress the harm that has been done to separation of powers in an era of historically unparalleled judicial supremacy.
Hopefully, Gingrich also realizes that one must use the utmost prudence in facing off against the judiciary right now. In spite of judicial excess, this is an era of increasingly sweeping power by the legislative branch and—more than ever under Obama—the executive. Those concerned about limited government may in the future have to look to the courts as allies.
Finally, even while showing a willingness to resort to strong responses such as these if necessary, Gingrich’s position paper makes clear that the best long-term solution for restraining judicial excess is to appoint judges with the correct understanding of the Constitution. Gingrich recently stated that he would appoint judges in the mold of Robert P. George, the eminent natural law scholar, McCormick Professor of Jurisprudence at Princeton, and long-time First Vice President of the Society of Catholic Social Scientists. One hopes the other Republican candidates are thinking the same way.
Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists.