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The Corner

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Judicial Independence and Journalistic Conformity



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Over the weekend the Washington Post carried a short AP story about the Republican candidates’ proposals to rein in the courts. Here’s how it opened:

Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues.

Any one of those proposals would significantly undercut the independence and authority of federal judges.

Actually, several of the proposals mentioned have nothing to do with the “independence” of federal judges. If Congress chooses to defy a Supreme Court ruling, the courts remain free to rule however they want on the resulting statute. (The Court divided 5-4 when Congress did that on partial-birth abortion.) Strip the federal courts of jurisdiction over select issues, and judges will remain just as free as ever to issue the rulings they believe the law dictates. Unless “judicial independence” means “relatively unchecked judicial power,” it’s just not threatened by these steps. (See here for more.) The rest of the piece quotes two liberal academics and one liberal activist criticizing the conservative politicians. Apparently there are no experts who support them in any respect.

The New York Times ran its own version of this story over the weekend too, and it’s worse. Adam Liptak and Michael Shear write, “In attacking the courts, the Republican candidates sometimes seem to hedge their vows to remain faithful to the Constitution. Many of their proposals aimed at curtailing the power of the courts would require the document to be amended.” No. When conservatives say we should be “faithful” to the Constitution, what we most have in mind is Article V: We aren’t against amendments to the Constitution, we just want them to be pursued consistent with the procedures the document lays out.

Liptak and Shear continue: “But the Marbury decision, which gave the Supreme Court the last word in interpreting the Constitution, has its critics. Mr. Gingrich, for instance, told the Values Voter Summit in October that ‘judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.’” Gingrich said nothing about Marbury at the summit. It is clear, however, that he reads Marbury differently than Liptak and Shear. At the Palmetto Freedom Forum debate on Labor Day, Gingrich said that it was not until 1958 that the Court had claimed to have “the last word in interpreting the Constitution”–which means that Marbury, an 1803 case, did not say that. Gingrich is right about that, and whole books have been written explaining why. (Here’s one, here’s another.)

Update: Liptak and Shear would, in my mind, have been perfectly accurate if they had written, “Most legal experts say that Gingrich’s views run counter to Marbury v. Madison.” They just shouldn’t have presented this view as uncontested.



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