Why Newt’s Stance on the Judiciary Matters and Why It Needs to be Fought

(I totally agree with this, what Newt’s proposing is extremely dangerous to the rule of law in America. Heck, even George Will blasted Gingrich today for his assault on our country’s independent judiciary. For once, I agree with George Will on something. That’s how horrible Newt’s cockamamie “idea” is. – promoted by lowkell)

For those who may be blissfully unaware of the latest emission from the Newt idea factory, Gingrich has come out with an aggressive attack on the federal judiciary.  Essentially, he believes that the federal courts have greatly over-stepped their proper role in our constitutional system (primarily by assuming the authority to bind the other branches of government to their opinions on constitutional law) and need to be reigned in by various methods such as the threat of wholesale elimination of judicial circuits or the institution of Congressional hearings where the authors of offensive opinions could be dragged in for prolonged questioning.  

Amy Davidson has an interesting post in the New Yorker’s Daily Comment Blog questioning whether one should worry about Newt and his plans (available here ).  Her ultimate answer is yes on the grounds of understanding the subliminal messages this court-attacking scheme sends to voters – particularly social conservatives – and correcting the historical distortions behind the proposal.  Important reasons no doubt but they fail to recognize the true danger of this plan.

Namely, the role of the federal courts in constitutional interpretation is primarily a separation of powers question.  If you peruse the limited Supreme Court opinions which analyze separation of powers questions or the more copious  declarations from the Department of Justice’s Office of Legal Counsel you will find that one factor tends to drive decisions – political consensus arrived at through historical practice.

Why can Supreme Court decisions only be overturned by constitutional amendments? Partly due to our understanding of the text and theory of government (to the extent there was one) put forward by the founders but mostly because the legislative and executive branches reached a political consensus that this was the appropriate role for the Court. (It is worth pointing out that, despite what the Supreme Court may say in some of its more grandiose opinions, the political consensus regarding the court’s authority to finally decide constitutional questions only covers certain areas; primarily the application of the Bill of Rights and the limits of federal authority.  You seldom find the court venturing into important disputes between the Congress and the Executive relating to their shared authorities.) Gingrich understands this and his paper is an opening salvo in a battle to change that consensus.  The opening summary flatly states that

This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.

Friends of the current system ignore this attack at their peril.  Yes, Newt’s “plan” (as with most of his ideas) is zany and out of the mainstream at the moment.  Consensus is a fragile object though.  I think it is safe to say that the more aggressive visions of the “unitary executive” were similarly out of the mainstream 30 to 40 years ago but thanks to the diligent efforts of conservative scholars and groups like the Federalist Society it achieved a level of respectability that enabled many of its ideas to be placed into practice during the Bush Administration.  Without sufficient opposition, this idea could just as easily grow into something much more serious.  

What is to be done then? The incredulous reaction by most commentators and thinking citizens is a good start but it is not enough.  Candidates at all levels – from the Presidency down to state level offices – should be questioned on the wisdom of this thinking and be forced to reject it publicly.  The fact that it is out of the mainstream needs to be pressed now before it can grow in the dim corners of extreme thought and begin to seep into the “accepted thinking” of conservative candidates. If we fail to do this now, I fear that we will encounter this idea again in a stronger form down the road.