Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Newt Gingrich made headlines recently by suggesting that federal judges could be summoned—by force if necessary—to explain their decisions before Congress.  Gingrich also advocated impeaching federal judges and Supreme Court Justices with whose decisions he disagrees.  Moreover, when critics charged that these and other proposals by the former House Speaker would threaten judicial independence, Gingrich shot back that if a President Gingrich were to intimidate federal judges or disregard unpopular judicial decisions, he would merely be following in the footsteps of Presidents Thomas Jefferson, Abraham Lincoln, and Franklin D. Roosevelt.

Despite Gingrich’s characteristic grandiosity, he does have a point.  Judicial supremacy—the notion that the Supreme Court’s interpretation of the Constitution binds all other government actors—has been controversial at various points in American history.  But in insisting on invoking a power that dates to the early Republic, Gingrich fails to appreciate how and why the role of the courts has evolved over time.

How Gingrich’s View May Be Consistent With Marbury v. Madison: Departmentalism

Nearly every American schoolchild learns that in the 1803 case of Marbury v. Madison, the Supreme Court ruled that its own interpretation of the Constitution prevails over contrary interpretations by Congress, the President, and just about everyone else, unless and until the Court overrules its precedent or We the People amend the Constitution.  Here is how the Supreme Court characterized Marbury in the 1958 case of Cooper v. Aaron:  “This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Gingrich argues that Cooper mischaracterizes Marbury.  He says that he accepts Marbury but only in the way that Thomas Jefferson and Abraham Lincoln did.  Jefferson accepted that federal courts have the power of judicial review, but he did not think that judicial review—the power to disregard a law or policy that the courts deem unconstitutional—entailed judicial supremacy,which means that judicial interpretations of the Constitution bind other actors, such as the President and Congress.

Jefferson adhered to a view that Stanford Law School Dean Larry Kramer has called “departmentalism,” under which each branch (or department) of government has the power and duty to construe the Constitution for itself.  Lincoln also argued for departmentalism, most famously in his First Inaugural Address, in which he expressed the view that the infamous Dred Scott decision was binding on the parties to the case, but might not be followed in later cases, and was not binding on political actors.

In his own speeches and writings—including a very favorable New York Post review of Kramer’s book The People Themselves—Gingrich has praised departmentalism.  He argues that the judicial supremacist view of Cooper is inconsistent with democratic principles.

Departmentalism in Practice

Some versions of departmentalism are fairly innocuous.  Suppose that a law is challenged as unconstitutional and the Supreme Court rejects the challenge, upholding the law.  Everyone agrees that politicians and others who disagree, and think that the law is unconstitutional, can work to repeal the law.

For example, in 1819, the Supreme Court ruled in McCulloch v. Maryland that Congress had the power to charter a national bank.  President Andrew Jackson disagreed, and so in 1832, he vetoed a bill that would have renewed the bank’s charter.  Jackson did not thereby violate McCulloch and virtually no one thinks otherwise.  Judicial supremacy has never meant that political actors are forbidden from disagreeing with the Supreme Court in these circumstances.

The rubber meets the road for departmentalists when political actors want to take the very action that the courts have already ruled unconstitutional.  At that point, departmentalism can undermine judicial independence.  To see why, consider what happens when a state legislature, Congress, or the President attempts to act on a departmentalist view.

Suppose that Congress disagrees with a Supreme Court ruling invalidating a law, as Congress disagreed with the 1989 ruling in Texas v. Johnson that the First Amendment’s protection for freedom of speech includes the right to burn an American flag.  Congress responded by passing a new law banning flag burning, acting on its different interpretation of the First Amendment.

One way we can understand the new federal law is as an effort by Congress to persuade the Court to change its mind.  In this instance, the Court accepted the invitation to reconsider but then reaffirmed the Johnson holding in United States v. Eichman. Congress then took no for an answer and stopped enacting statutes that it knew would be struck down.  Some members of Congress proposed amending the Constitution to ban flag-burning, but those efforts failed, even after they were repeatedly renewed.  Eventually, the issue died because Congress was not willing to insist on an all-out confrontation with the Court.

According to Gingrich, Congress threw in the towel much too early.  It could, he says, have summoned the Justices who voted in the majority in Johnson and Eichman to appear before Congress.  It could have stripped the courts of jurisdiction to hear constitutional challenges to laws forbidding flag-burning.  It could have impeached judges and Justices who did not bow to its will.  And, even without impeachment, it could have abolished the judgeships and seats on the Supreme Court that were held by jurists who disagreed with Congress. A Gingrich campaign position paper argues that Congress should not be afraid to use these tools.

Gingrich’s History:  Basically Accurate but With an Ideological Slant

The Gingrich white paper has an unmistakable ideological edge.  For example, it states that “on the current Court, Chief Justice John Roberts and Justice Antonin Scalia have been among the most vocal opponents of judicial supremacy in their opinions.”  This is simply untrue.  Chief Justice Roberts and Justice Scalia have been sharply critical of cases that they believe were wrongly decided, but neither has questioned judicial supremacy itself.

For example, Justice Scalia joined the 1997 majority opinion in City of Boerne v. Flores, which is the most strongly supremacist decision since Cooper.  Moreover, since Chief Justice Roberts joined the Court in 2005, he has not hesitated to invalidate acts of Congress he deems unconstitutional.  It is impossible to imagine that either Justice would approve of, say, an effort by a Democratic Congress to impeach the Justices who voted in the majority in Citizens United v. FEC, which included both Roberts and Scalia themselves.

Nonetheless, Gingrich’s history is basically correct.  In the nineteenth century, Congress and the President were much less willing to accept judicial supremacy than they are today.  Consider, for instance, President Jefferson’s confrontation with the judiciary.

In the election of 1800, Thomas Jefferson won the Presidency and his party, the Democratic-Republicans, won a majority in Congress.  But before Jefferson and the new Congress took office, outgoing President John Adams and his Federalist-majority Congress created new federal judgeships, which they then packed with Federalists.  The so-called “midnight judges” bill infuriated Jefferson, who tried to undo it when he took power.

Jefferson and the new Congress eliminated the newly created judgeships and also canceled a Supreme Court term, effectively preventing the Supreme Court from ruling that the elimination of judgeships violated the life tenure provision of the Constitution’s Article III.  Although the high Court never squarely ruled on the question, it essentially acquiesced to Jefferson’s fait accompli in the 1803 case of Stuart v. Laird.  Indeed, many people expected that if the Court had ruled otherwise, Congress would have impeached Chief Justice John Marshall.

What We Have Learned Since the Early Nineteenth Century Regarding Judicial Supremacy

But if Newt Gingrich is a competent historian of the early nineteenth century, his normative vision leaves much to be desired.  Most twenty-first century Americans react with horror at the Jeffersonian Congress’s treatment of the Federalist judges—even though we may agree with Jefferson on the underlying merits.  Federalist judges had been instrumental in enforcing the Sedition Act, which we now consider a violation of the First Amendment.  And the lame-duck Federalist Congress and the Adams Administration acted unfairly by packing the courts in the first place.  But still, even the valid ends Jefferson pursued did not justify his means.

How do I know?  Because two subsequent episodes vindicate this judgment.  The first was the impeachment of President Andrew Johnson.  The House that voted articles of impeachment against Johnson did so because its members believed that he was not pursuing Reconstruction with adequate vigor.  But the Senate that ultimately just barely declined to remove Johnson reached that judgment because enough Senators concluded that policy differences do not warrant impeachment.  That principle, which was accepted by all parties during the impeachment proceedings against Presidents Nixon and Clinton, applies with equal or greater force to judges, as well.

The second episode is even more telling.  When President Franklin D. Roosevelt attempted to increase the size of the Supreme Court in order to ensure that his New Deal legislation would be upheld, he was rebuffed by a Congress that was controlled by his own party.  The Democrats in Congress who voted down Roosevelt’s Court-packing plan understood that even though they had the technical power to increase the size of the Court, their doing so to achieve substantive ends would undermine the Court’s ability to check the other branches of government pursuant to our constitutional system of checks and balances.

Newt Gingrich is right that judicial supremacy can impede the ability of majoritarian politics to work its will.  But our history has taught that democracy requires more than the simple counting of votes.  Representative government under the American Constitution, we have come to understand, also includes protection for the rights of individuals and minorities.

Why Gingrich is on the Wrong Side of History

It is telling that Gingrich and the other strong departmentalists target Cooper v. Aaron as Exhibit A in their campaign against judicial supremacy.  At issue in Cooper was whether the Little Rock School Board could be excused from complying with its obligation to desegregate its schools on the grounds of public safety, where the threat to public safety was the direct result of efforts by the Arkansas legislature and Arkansas Governor Orval Faubus to nullify the U.S. Supreme Court’s decision in Brown v Board of Education.  In what many observers regard as the Supreme Court’s finest hour, it said that desegregation had to proceed unimpeded.  For the first (and thus far, only) time in our history, all nine Justices signed the opinion.

If Cooper somewhat overstates the Supreme Court’s authority, the context of the case makes the Court’s rhetorical excess entirely understandable.  That context also underscores how far Gingrich and other strong departmentalists err in the opposite direction.

In Cooper, the Court faced a rebellion that could have led to a second Civil War.  The Justices insisted on their own authority in order to ensure that the full force of the federal government would be brought to bear against Arkansas’ intransigence—and the move worked: President Dwight D. Eisenhower brought in federal troops to safely escort the African American students to the formerly all-white school.  Although “Impeach Earl Warren” billboards would continue to be seen in the South for another decade, the Little Rock episode effectively put an end to open rebellion.

By making Cooper a central focus of his attack on judicial supremacy, by proposing impeachment for judges and Justices who issue unpopular decisions, and by generally seeking to resurrect long-discarded means by which political actors can control the courts, Newt Gingrich is playing with fire.  It is not by accident that after World War II, nearly every democratic country in the world began to follow the lead of the United States in assigning to judges the role of policing the outer bounds of government’s legitimate authority.  By invoking our distant past as precedent for a neutered judiciary, Gingrich shows that he has not learned from the history he has studied.