Gingrich and the Courts
Time to rein in the imperial judiciary.


Andrew C. McCarthy

In 2005, Congress barred our terrorist enemies from appealing their wartime detention to the civilian courts. The Detainee Treatment Act (DTA) was an eminently reasonable statute. The handling of captives in wartime had always been exclusively an executive-branch prerogative — war being a political and military exercise, not a litigation. The framers committed all aspects of warfare to the political branches, accountable to the people whose lives are at stake, not to the politically insulated judiciary.

Congress acted comfortably within its powers: The Constitution makes it master of the federal courts’ jurisdiction. Indeed, other than the Supreme Court, all federal courts are creatures of statute — the Constitution does not require their existence. Yet, in a nod to the ambiguities of terrorist warfare, in which jihadists do not operate openly as honorable soldiers, the DTA even provided a narrow avenue of judicial review. That made our enemies the first anti-American belligerents in history to be given systematic access to American people’s courts in wartime — something the World War II–era Congress would not have tolerated, and that the Supreme Court of that time actually warned against.

Not good enough, pronounced the Supreme Court’s transnational-progressive majority. The justices ignored Congress and licensed the lower courts to entertain the enemy’s cases anyway. Soon after, they invalidated the military-commission war-crimes trials the commander-in-chief had ordered — even though commissions had been an executive prerogative since the Revolutionary War, and even though Congress, in the DTA, had implicitly endorsed them.

The Court also implored Congress to do more — to intervene and explicitly resolve the question of how detainees should be handled. “Turns out they were just kidding,” as Justice Scalia would later acidly say of the leftist justices behind this string of detainee rulings. After Congress did exactly as the justices had asked, the Court again thumbed its nose, ignoring the legislature’s unambiguous directive that the lower courts lacked jurisdiction to entertain the detainees’ appeals. In a ruling that defied both logic and centuries of Anglo-American jurisprudence, the Court held that aliens captured outside the United States — aliens whose only connection to our body politic was to wage a terrorist war against us — were somehow vested with a constitutional right of access to our courts to challenge their detention.

These rulings are not simply legal outrages. They deny the sovereign power of the American people to enforce their natural right of self-defense — all for the benefit of foreign jihadists who target civilians for mass murder. Nor are they singular excesses. In the last three-quarters of a century, there has been an explosion of juristocracy, of politically unaccountable judges’ nullifying the American people’s democratically enacted choices. The courts have not merely been an advocate for our wartime enemies but a partisan in the culture wars — inventing abortion rights; eroding the bedrock principle of equal protection before the law; cossetting heinous criminals; banning public expressions of religious reverence; protecting the publication of child pornography while curbing political speech; cherry-picking international law as needed to reverse popular self-determination; and so on.