For daring to pronounce this state of affairs a subversion of our constitutional order, and for proposing to rein in the imperial judiciary, Newt Gingrich has been derided as “outrageous” — that’s actually one of the tamer descriptions.
One could argue that the former Speaker and current GOP presidential hopeful has himself to blame for that. “Outrageous” is one of the critiques applied to aspects of Gingrich’s proposal to rein in the judiciary by Michael Mukasey, who served as President Bush’s last attorney general. A widely respected former federal judge and conservative thinker, Judge Mukasey actually approves Gingrich’s overarching aim. “There’s a lot in there that’s good,” he said of the Gingrich plan in a Fox News interview. “Take a red pen to the parts that are bad, stick with the parts that are good, and run on it.”
In a sadly predictable drama, the media and former Speaker are playing to their worst tendencies: The media is hyping the bits that are red-pen-worthy, and Gingrich is vigorously defending what is not only indefensible but pointless.
Consuming all the oxygen, and thus distorting the proposal, is the sideshow prospect of hauling federal judges before Congress to compel them to explain particularly atrocious rulings. That this would violate separation of powers is obvious. The worst aspect of this tempest, though, is its pointlessness. Judges always explain their rulings in written opinions. The problem is that the explanations depart grossly from the original understanding of the Constitution and the modest role of judges in a free society — not that we don’t know what the explanations are and can’t grasp them absent some theater of the absurd.
More dismaying is the caricature of a serious idea: repealing some federal courts. This has been reported, with no small contribution from campaign bombast, as the notion that, because the Ninth Circuit federal appeals court (taking the most notorious example) issues a disproportionate number of what Mitt Romney might call “zany” rulings, we should just get rid of the Ninth Circuit — Congress created it, so Congress can eliminate it. You get the sense that Gingrich would have us proceed forthwith from bad ruling to pow! no more court.
That is not a realistic rendering of what is at issue. It is as unserious as would be the suggestion that anyone thinks we should move from disagreement with a bad presidential decision to impeachment, the drastic remedy invoked exactly twice in 225 years of constitutional governance. In the real world, there are many steps between the extreme we have now — sheep-like acquiescence to a continuing usurpation of power — and the extreme of making the offending judges disappear.
For example, the political branches may enact laws that deny the courts jurisdiction to hear certain kinds of cases. If the courts ignore these bars (as they did in the detainee cases), the political branches may enact laws reversing those decisions. If the courts persist in their obstinacy, theorizing that they are vested with the final power to divine the Constitution’s meaning (a power found nowhere in the Constitution), the political branches could enact a law, or propose a constitutional amendment, that explicitly empowers them to overturn decisions of the Supreme Court. Or they could simply refuse to enforce court rulings — the courts’ impotence in unilaterally imposing their judgments having been the principal reason Hamilton presumed the judiciary to be “the least dangerous” branch. Congress, moreover, could revisit the dubious tradition that judges can be impeached only for personal corruption, and not for persistently, egregiously overstepping their authority.