I was unaware of Newt Gingrich’s judicial reform plank until it was brought to my attention by John Galt at Robbing America. While I am an advocate for legal reform, it does not necessarily mean judicial reform. I read Newt’s “White Paper” on judicial reform, and I have to agree with Mitt Romney in his Wall Street Journal interview here the Newt’s proposal is “unusual to the extreme.” (I have been very hard on Mitt Romney during this campaign, and will continue to be. But, I will give credit where credit is due. I also have no knowledge of Ron Paul’s position on Newt’s proposal, and will vehemently disagree with Dr. Paul if he agrees with Newt.)
Newt’s complaint is standard conservative fodder; activist judges have taken too much power unto themselves and have shredded the Constitution. Consequently, Newt has a series of proposals to scale back the power of the judiciary, including ignoring Supreme Court interpretations of the Constitution when necessary.
All in all, however, Newt’s proposals are more than “unusual in the extreme,” they are dangerous—to the Constitution and liberty. His proposals are also based on several incorrect factual assumptions, so it should come as no surprise that when doo-doo went in, doo-doo came out.
It will only take me three steps to get through this.
1) The Myth of Judicial Activism. While I agree that some state courts in certain periods of time and in certain areas of law have been too active (e.g., California’s 1960s tort jurisprudence), Newt is specifically referring to the federal judiciary and its Constitutional jurisprudence. As such, I will focus solely on that subject.
See here the Institute for Justice’s Center for Judicial Engagement. IJ is absolutely correct that:
The courts were meant to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority. But as the Institute for Justice has seen too often, judges are either unwilling or feel unable to enforce constitutional limits on the size and scope of government power.
So, for example, consider the Supreme Court’s Interstate Commerce Clause jurisprudence. Newt is correct that things changed in the 1930s for the worse—but because the Supreme Court became insufficiently active, not too much so. The ICC became a license for Congress to do anything it chooses, without challenge from the Courts. It is insufficient activism that allowed the federal government to grow into the sinking leviathan we have today. As fictional economist Murray Stevens opined in my novel The Eagle Has Crashed, the primary party responsible for an American debt crisis was:
The Supreme Court, for giving children guns and gasoline.
The Constitution wouldn’t be in the sad shape it is had the Supreme Court defended it against FDR’s power grab.
(Newt has more of a point when it comes to social issues, but not much of one.)
2) Judicial Supremacy. Newt attributes the doctrine of “judicial supremacy” in Constitutional interpretation to the 1958 case Cooper v. Aaron. He dismisses the idea that it originated with Marbury v. Madison in 1803, contending that the Cooper court extended Marbury far beyond its original holding. I spent two weeks dissecting Marbury in my first year of law school, and I believe he is wrong. Consider this from FindLaw:
Just as important, it emphasized that the Constitution is the supreme law of the land and that the Supreme Court is the arbiter and final authority of the Constitution.
Gingrich maintains that this is just the result of power-hungry legal academicians who have spread the myth of judicial supremacy. While I have serious issues with law schools, I don’t think Gingrich is correct in this case. Consider this from Justice Marshall in Marbury:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. . .
. . . It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.
I’ll let you draw your own conclusion, but I think it’s pretty clear that Marshall believed that courts were to be the final arbiters of not just laws, but the supreme law of the land—the Constitution. To say that this doctrine didn’t arise until 1958, or stems from the creative imagination of law professors doesn’t hold water.
3) Do we want Congress and the President checking their own powers? Newt makes the bizarre argument on page 22 of the White Sheet that when two branches of government agree that something is Constitutional that it is so. By definition that means that anything passed by Congress and signed by the president is Constitutional! No chance for abuse there, eh?
Newt’s defense of his ideas comes on page 19:
These powers should be used sparingly and only in proportion to the extent that the judicial branch is exceeding its powers.
An elected official in Washington using his or her powers sparingly? Is there such a creature? Can you imagine a world in which President Obama felt free to disregard the few remaining Constitutional tethers on a president? Should we accept the ObamaCare mandate as Constitutional because it is part of a signed piece of legislation?
I’m afraid that Newt is way off base here. I am no fan of the Supreme Court, but thought of the legislative and executive branches unchecked sends shivers down my spine. As one of the most vocal critics of the legal industry you can find, you can be certain that I do not arrive at my conclusion because I am a mindless product of legal education. Judicial supremacy isn’t perfect, but it’s better than the lack of it.
This article is also posted at The Country Thinker.