Also addressed in today’s Jolt are Newt Gingrich’s comments over the weekend, suggesting that as president, he would abolish whole courts to be rid of judges whose decisions he feels are out of step with the country, and that Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.
Gingrich: Well, Bob, I think part of the advantage I have is that I’m not a lawyer. And so as historian, I look at the context of the judiciary and the constitution in terms of American history. The fact is, I’ll just give you two examples — Judge Biery’s ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there’s no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What’s the recourse? Well, one recourse is impeachment. The Supreme Court, in Boumediene . . . literally inserted the American civil liberties onto the battlefield. Now this is the opposite of World War II where Franklin Delano Roosevelt told the Supreme Court, through his attorney general, that the 14 German saboteurs that have been picked up in the U.S. would be tried by military tribunal and executed and that he would not tolerate a writ of habeas corpus as commander in chief. And so you have this real problem that since 1958, when the Warren Court asserted by itself, that the Supreme Court was supreme over the president and the congress, you’ve had a fundamental assault on our liberties by the courts, you have an increasingly arrogant judiciary, and the question is, is there anything we the American people can do? The standard conservative answer has been, well, eventually we’ll appoint good judges. I think that’s inadequate.
. . . Here’s the key — it’s always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power, not to have a dictatorship by any one of the three branches.
Face the Nation host Bob Schieffer presses the example of Obamacare, and asks whether if the Supreme Court rules it unconstitutional, whether President Obama could simply ignore the decision and “go ahead and implement it.” Gingrich responds, “He could try to do that. And the Congress would then cut him off. Here’s the key — it’s always two out of three. If the president and the congress say the court is wrong, in the end the court would lose.”
Except that sometimes popular opinion is wrong and sometimes popular opinion can support something that violates the Constitution. Most conservatives would argue that’s precisely what happened when Congress passed and Obama signed Obamacare into law. Under Newt’s vision, the only thing ensuring the enforcement of a ruling that declared Obamacare unconstitutional would be the Republican-controlled House. If the GOP hadn’t taken the House in 2010 (or if Democrats retook it in 2012 — pretty unlikely, as laid out here). a reelected Obama and a Democratic Congress could ignore any ruling from Chief Justice John Roberts and four or more allies.
The appeal of Gingrich’s rethinking of the role of the judiciary is clear in the examples he cites, like a judge attempting to criminalize any reference to God in a public graduation ceremony. But the result would be a federal government even more subject to the whims of popular opinion and election winners. In January 2009, conservatives knew that the ambitions of the Obama administration and its congressional allies faced at least the backstop of the Roberts Court (at least on the days Justice Kennedy agreed). What is popular and what is constitutional are not always the same, and the role of the court today, for all of its flaws, includes separating the two. Gingrich’s approach may seem appealing when we witness egregious examples of judicial activism — but if conservatives as a whole endorsed it, the approach would represent a major gamble that liberal Democrats would never again get complete control of the legislature and executive.