Re: In Partial Defense of Newt Gingrich

by Ed Whelan

Two weeks ago, I sketched a brief defense (in points 1 and 2) of Newt Gingrich’s criticism of judicial supremacy, including of the Court’s extravagant dictum in the 1958 case of  Cooper v. Aaron. In an excellent Public Discourse essay today, Joel Alicea provides a full elaboration of the defense. Here’s an excerpt:

Cooper was a case about enforcing federal law against the states. The Court need only have claimed the power to bind the states to its decisions; there was no need for the Court to assert its supremacy in constitutional interpretation against Congress and the president.… But the Court chose to assert a far more sweeping power: the final word on the meaning of the Constitution for all levels of government.

It is this last claim—that the Court’s decisions bind Congress and the president—to which Gingrich, Meese, and eminent scholars of varied political affiliation object. Nothing in this criticism tarnishes the courage or rightness of the Court’s decision in Cooper. As the Court acknowledged, its statement on judicial supremacy had no bearing on the outcome of the case, and the history related above demonstrates that judicial supremacy was unnecessary to rebut the legitimacy of nullification.

The real question is not whether opponents of the Court’s assertion of judicial supremacy in Cooper applaud the outcome of the case; it is whether supporters of judicial supremacy understand that their position places them on the other side of Abraham Lincoln. It was Lincoln who, in response to Chief Justice Roger Brooke Taney’s opinion in Dred Scott v. Sandford, rejected judicial supremacy in his first inaugural address. Lincoln believed that accepting judicial supremacy would mean that “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” He followed through on his challenge to the Court by defying the Dred Scott decision and issuing passports to free black citizens. How odd that those who follow in the tradition of Lincoln should find themselves accused of the sins of Taney.

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