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

Posted in: Constitutional Law

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.

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

  1. Hateliberaljudges says:

    OK so lets break this down…. each time the supreme court goes “girls gone wild” you place the burden on congress to write new and non existent laws to counter the idiocies of rogue supremacists. GIVE  ME A  F&^%$*G  BREAK!   You write such garbage because you live in this country and because you paint yourself as “informed” & “intellectualized” by virtue of a “diploma” given to you by no other than a liberal ridden institution. 

    why don’t you go and move in with Koffi Annan and charter a United Natins Court to rule the whole freaking planet. Now that would really get your rocks off .. wouldn’t it? you son of a bitch liberal supremacist. 

  2. Jane Mayer says:

    It is only to be expected that a mere history professor should fail to impress a lawyer in context with legal mentation.  We all can determine right from wrong, but lawyers can argue on both sides of any issue by merely changing the scope or the application.  What IS important is that Gingrich, as usual, thinks himself smarter than anyone else when clearly he is self deluded to ramp up an argument that proves him to be uneducated in right and wrong… but then we knew that was a problem from his personal life.  For Newt Gingrich, it is whatever expediency is necessary to accomplish his goal is the direction he moves. 

    As for the vagarities of the current court on Citizens United, it is a case of political action from the bench and shows us that Newt Gingrich is not the only politician who deems expediency the simplest redemption.  The case is tainted by justices attending political action committee steering committee meetings and serving as advisor.  More simply put, it is wrong to suggest that freedom of speech applies to a corporation when it has so many avenues of political and economic speech available that its only seeming constraint is that it cannot vote its economic power… until the current court deemed it necessary to give corporations more than the vote, but went on to give corporations the ability to anonymously affect elections by putting the corporate money voice.  Humans are not allowed to do what they gave to corporations, thereby setting humans as second class persons in comparison to corporations.  Their legislation from the bench is due to be damned and thrown out as vulgar political schtick.  Thus Newt Gingrich is not the only current day politician who seems not to know the difference between right and wrong.  Our Supreme Court is prime example.

    The question is when the Republicans in Congress will take action against the Democrats who have already moved into action to use corporate money…. especially vexing I suppose since the court is clearly Republican.  But then perhaps it will have to wait until we get a Congress with enough clear uncontrolled non-political thinking going on to actually submit and pass necessary action to save our great nation from the Republican unfettered banking system.  Just as we find ourselves boxed by slavish worship of money and winning at any price, we can find ourselves quickly chastened by deletion of names from our Congress based on their unmerited bragging that they have used their voting power to bring down a Presidency.  Their goal alone suggests that they are committing treason.  But their methods include class warfare and economic slavery of the masses.  Just THINK what our forefathers would have to say about THAT.

    It appears today that we MUST get rid of both sides of the aisle who have failed to negotiate in good faith for the good of the American people.  There are actors with no conscience, of course, but there are simply too many actors with ulterior motives in Congress.  We MUST start clean and anew to renew our legislative bodies with those who will find consensus and act on the clearly out of control spending while working to improve the unemployment situation.  We will have to have increased taxes, at least back to Clinton’s level, but perhaps even as high as they were with the Gipper. 

    What troubles me is that these people are putting off the correction until it is too late to be effective.  They care more about their political party than their constituents.  THAT is shameful.  THAT is why we need to clean house.

  3. David Charles Morse says:

    I have a question. Do you know of any articles speculating on what would have had happened had Marshall been impeached during Jefferson’s first term? It seems that it is possible that our country would have turned out far different if we had had a Jeffersonian Republican holding sway over our founding case law.

  4. David Charles Morse says:

    How was Cooper the only unanimous decision? Is “signing” the key word here?

    -aspiring law student

  5. Anonymous says:

    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.

    In the above cited case, which was narrowly found, we
    have an instance in which SCOTUS took an extremely unrealistic view of the
    first amendment.

    The loss of news outlets due to economic reasons
    demonstrates for us that there is an economic dimension to the political right
    to free speech established in the US Constitution. In the 18th century when the
    cost of living was much lower and the cost of publishing not so prohibitive
    numerous publishers flourished and offered a wide array or partisan and
    independent news organs. The founders and most previous court rulings have been
    made with this paradigm of a friction free economic environment in mind.

    However, in contemporary times we have seen a
    remarkable shrinking of the number of news publishing organs and a concomittant
    and accelerating shrinkage of the news hole in the remaining organizations. The
    term news hole, refers to the space available on the pages of publications or
    broadcast minutes available for news coverage.

    We have also seen the increasing practice of large
    campaigns buying media time months in advance of primary and general elections,
    this practice serves the dual purpose of guaranteeing air time for the
    campaign’s message, and of limiting the time available for opposition messages.

    It is this second practice, the limiting of opposition
    messages that makes Citizens United such a threat to freedom of the press.
    Knowing that 501 c and other advocacy groups are likely to desire air time
    during campaign seasons, media outlets respond by holding more time open around
    election dates, expecting the prices of their air time to be bid up and become
    more profitable as well as significantly more expensive.

    With their superior financial resources and the focus
    they can make on media buys with the exclusion of all the other campaign
    expenses, advocacy groups have the potential of monopolizing media time and
    crowding out campaigns and less well funded public interest advocacy groups.

    SCOTUS logic in Citizens United is inappropriate for
    the modern media environment. Instead of enhancing freedom, SCOTUS has opted to
    enhance filibustering the airwaves by well funded and unaccountable advocacy