A Nation Without Courts

Newt Gingrich is running as an ideas man, as ‘the smartest person in the room’ wherever he goes. Recently he boasted that one of his campaign documents was “the most thorough statement of the Constitution and the balance of power, I think, that’s been written by a political figure since Lincoln’s first inaugural in 1861.” No small claim. So I decided to take a look at this paper (pdf) and see what he is proposing. (For those following along, Gingrich’s proposals begin on page 20.)


Run of the Mill

Thankfully, most of the document’s suggestions are nothing revolutionary. He thinks we should elect the right Senators and appoint the right judges. He pledges to take a Constitutional approach to government. He’ll direct the Solicitor General to favor the interpretation he favors. And he wants Congress and state legislatures to express their unhappiness about judicial decisions with which they disagree.


Congress Above the Courts

One of Gingrich’s proposals is for Congress to combine its power to legislate in general with its power to set the boundaries of the Supreme Court’s jurisdiction. For example, Congress could pass (and the president sign) legislation reinserting “God” in government speech and simultaneously strip the courts of authority to hear challenges to the law. In that way, two branches could simply cut the other branch out of the process. Personally, I prefer more checks on potential violations of the Constitution by the political branches.

Gingrich suggests a slew of ways in which Congress can politicize the Courts. Most benignly (but still frustrating), he proposes “Judicial Accountability Hearings” in which judges would be called before Congressional committees to explain their decisions (as though they hadn’t already done so in writing) and get to “hear a proper Congressional Constitutional interpretation.” Do you think he’d appreciate that once a Democratic Congress was questioning judges he appointed?

More egregiously, Gingrich calls for Congress to be much more heavy handed in impeaching federal judges or even simply abolishing judgeships or lower federal courts (a move that would bypass the 2/3 vote required for impeachment). Such behavior, while technically within Congress’s power, would represent a huge setback for the rule of law in America. I know that conservatives often get worked up about lifetime tenure for federal judges. And I can imagine a compromise position. But there’s a reason behind the current system: the need for an independent judiciary. Gingrich’s suggestions are designed to make the courts absolutely beholden to the whims of the party in power.


An Imperial Presidency

Gingrich has proposes several ways in which the president can unilaterally override the Courts. One of his suggestions is that the president should direct federal agencies to treat judicial decisions as binding only for particular cases, ignoring their broader applicability. Because precedent will still be binding in the courts for similar cases, this is nothing but a recipe for gridlock in which the federal government would repeatedly run up against the same binding precedent in repeated litigation while pretending that such precedent did not exist. Gingrich is right that Lincoln warned against the t00-broad application of judicial decisions, but he also recognized that such decisions are “entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” Gingrich is suggesting the opposite.

Much more perniciously, Gingrich proposes that in some instances the president should simply ignore the Supreme Court altogether. He wraps his argument in subjective or unverifiable conditions, but the argument boils down to this: If Congress passes and the president signs a bill which the Supreme Court then overturns on constitutional grounds, the president should simply ignore the Court’s ruling. Where there are two branches against one, the Supreme Court’s Constitutional interpretation simply gets outvoted.

Gingrich assumes that Congress and the president would never pass and sign a law they believed was unconstitutional. And since he also believes that the constitutional interpretation of each political branch is equal to that of the Supreme Court, there is really no such thing as an unconstitutional law. This is like Nixon claiming that whatever the president does is legal. It’s certainly not a conservative argument, since it undermines any understanding of the Constitution as an actual check on government, substituting instead the assumption of a benevolent, self-policing government. It’s also an especially odd argument to be making in light of the conservative attack on Obamacare, don’t you think?



I thought I was used to conservative anti-judiciary rhetoric. Conservative candidates have been campaigning against the long-passed Warren Court for decades now. But I was startled to read of the depth of Gingrich’s disregard for the judicial branch.

Gingrich suggested this paper was about “rebalancing” the judiciary, but his proposals would effectively cripple the federal courts. He is suggesting that a Congressional majority should exempt its legislation from judicial review and remove judges whose decisions it opposes. He counsels future presidents to simply ignore unwelcome Supreme Court decisions. He offers no new checks upon such actions but self-restrain. In such a future, why bother going through the process of appointing judges in the first place? We might as well defund the courts and have it over with. Oh, right, that’s one of his proposals, too.

2 Responses to A Nation Without Courts
  1. kaahl
    November 23, 2011 | 7:31 pm

    I agree with you. But I wonder what could motivate Gingrich, who apparently is the smartest man in the room, to advocate such a position? In a way, I think he is addressing a weakness in our current system. The conservative argument seems to be that activist judges have too much power over the other two branches. I forget the exact cases, but I remember wording in several Supreme Court and other cases that basically say “Congress can and should rule on matter XYZ, but they aren’t, and they won’t, and until they do, it is up to the courts to balance competing elements of the law.”

    Perhaps what Gingrich is getting at is that he was a part of the very problem he is now claiming he is solving–strong political division has divided the House and Senate and curtailed their ability to decide individual issues. Instead, almost everything is put in some sort of omnibus bill. It seems disingenuous to want to exercise authority on very specific instances of case law, legal precedent, or interpretation when the very body that makes those laws often throws them together in giant horse-trading sessions, behind closed doors, or fast-tracked through the body.

    • Jason
      November 23, 2011 | 9:52 pm

      It’s clear that Gingrich thinks he’s the smartest person in the room, and he clearly knows more stuff than the other candidates he’s on stage with, but I certainly don’t think his judicial proposals are wise.

      As for the weakness in our current system, you lost me at “activist judges.” Gingrich is joining fellow conservatives in attacking judges for doing what they are supposed to do. If you want judges to be non-partisan, you have to shield them from the elected branches of government. Gingrich is clearly not committed to the principle of an independent judiciary. Which, I guess is fine, but it’s certainly not an originalist reading. He should stop claiming that he wants to ‘return’ to some imagined judicial past.

      As for another point you made, there was a time before he was running for president that Gingrich was willing to admit that he contributed to partisanship in Washington and from that admission to build an argument for addressing real problems. It is sad to me that that time has passed. But I understand why – the electorate doesn’t take kindly to arguments of “I skrewed up and that’s why now I’m more qualified to run the country.”