In Partial Defense of Newt Gingrich

I’ve vigorously criticized Newt Gingrich’s proposal to abolish judgeships, and I also agree with Andy McCarthy’s critique of Gingrich’s idea that Congress should subpoena federal judges (and arrest them, if necessary) to explain their rulings to members of Congress. That said, I think that some of Gingrich’s other ideas have been subjected to unfair attack, and I’d like to sketch a brief defense of them here:

1. Gingrich is correct to contest the myth of “judicial supremacy.” As his “white paper” explains, he is not challenging the power of judicial review (the authority of courts to decide constitutional questions in cases that come before them) but rather the proposition that the Supreme Court’s interpretation of the Constitution “should be binding on the other two branches.” In defending the authority of the executive and legislative branches to contest the Court’s interpretations of the Constitution, Gingrich stands with (among others) Abraham Lincoln, who famously did not regard himself as bound by the principles set forth in the Dred Scott decision.

There is plenty of room to debate the circumstances under which a president should either refuse to comply with a decision by the Court or decline to apply the principles underlying the decision to other matters. But it’s a good thing that Gingrich is calling for the president and Congress to take their constitutional responsibilities seriously.

2. Gingrich is also correct to identify the Court’s 1958 opinion in Cooper v. Aaron as the Court’s first proclamation of the myth of judicial supremacy. It is grossly unfair to claim (as Ruth Marcus does in her Washington Post column today) that Gingrich is defending the authority of states to “ignore[] the Supreme Court with impunity.” What he is soundly contesting is the notion that the president and Congress stand in the same subordinate relation to the Supreme Court as the states do.

3. I also believe that Gingrich is correct, as a theoretical matter, that judges can be impeached for lawless decisionmaking. Consider, to posit an extreme hypothetical, a judge who decides every matter before him by flipping a coin. Why wouldn’t that be the sort of serious dereliction of duty that would (depending how you construe the relevant provisions of the Constitution) amount either to “high … Misdemeanors” (with “Misdemeanor” meaning “misbehavior”) or to lack of “good Behaviour”? And once the principle is recognized that lawless decisionmaking is indeed a basis for impeachment, the relevant question becomes what decisionmaking is sufficiently lawless to warrant impeachment.

I hasten to add that I believe that, as a practical matter, pursuing the impeachment option is almost always a fool’s errand. In part, that’s because Senate conviction requires a 2/3 vote. In part, that’s because the process of appellate review is a much better way of correcting error. And in part that’s because in an unstable or unsound legal culture it will be difficult to make the case that bad decisionmaking is really lawless.

4. I believe that Gingrich is correct that the problems of an activist judiciary persist and ought to be a matter of considerable concern. Andy McCarthy’s excellent column today provides a useful summary. (One point of disagreement: I think that Andy’s defense of Gingrich’s proposal to abolish judgeships rests on a serious misunderstanding of what Gingrich has in fact been advocating.) The fact that today’s Supreme Court is much better than the Warren Court or the Burger Court does not alter the fact that so many liberal activist precedents remain in place and that five justices on this Court are very capable of making things worse.

5. Finally, I’ll note that Dahlia Lithwick and some other Gingrich critics share with Gingrich the mistake of failing to distinguish between legitimate and illegitimate methods of unseating bad judges. Thus, they fault Gingrich for supporting Iowans’ defeat in a retention election of three justices who had voted to invent a state constitutional right to same-sex marriage. What Lithwick disguises as “respect for judicial independence” is subservient acquiescence to judicial imperialism.

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