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How to End Judicial Supremacy

by John Yoo

Newt Gingrich has the right idea but not always the right tactics

Former House Speaker Newt Gingrich knows how to press the Left’s soft spots. Even as he fades from the front of the Republican presidential pack, he deserves credit for attacking the judiciary’s seizure of power over some of society’s most important issues. Choosing new Supreme Court justices will be one of the next president’s most influential tools for changing direction on controversies ranging from the balance between national security and civil liberties to a woman’s right to an abortion.

Sometimes, however, Gingrich presses so hard that he ends up hurting his own cause. He stands on firm constitutional and historical ground when he attacks the commonly held idea that Supreme Court decisions bind the president or Congress and suggests that they could ignore judicial opinions under certain circumstances. He is surely right that the executive and legislative branches have a number of ways to corral wayward judges, including the power to change the jurisdiction of the courts, to eliminate judgeships, and perhaps to make greater use of impeachment.

Unfortunately, Gingrich couldn’t stop there. He undermined the main thrust of his plan, posted in a white paper on his campaign website, by advocating extreme methods for imposing accountability on judges. He proposed the use of subpoenas to drag federal judges before congressional hearings to explain themselves — a counterproductive thought that drew fire from all sides of the political spectrum. But it would be a shame if Republican politicians concluded that the water is too hot just because Gingrich got burned when he tried a running belly-flop.

Every year, conservatives and liberals claim some victory at the end of a Supreme Court term. Conservatives may praise the justices for reading the Second Amendment to protect an individual’s right to bear arms, while liberals may wrap their arms around Roe v. Wade. But the biggest winner of all is the Court itself, at the expense of the people’s right to self-government.

Slowly but surely, the justices have expanded their power to decide many of our society’s fundamental political, social, and moral questions. Only the Court now decides whether schools or states may take skin color into account when admitting students or doling out public contracts. The justices choose whether religious groups may help educate inner-city children or deliver welfare while staying true to their beliefs. Use of the death penalty — indeed, each individual execution — goes to our unelected judges for approval.

In recent years, the Court’s power grab has become even more vividly clear in national security. In Boumediene v. Bush (2008), five justices — the wandering Anthony Kennedy joined by a liberal bloc of John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer — took the unprecedented step of striking down a wartime law enacted by Congress and the president. U.S. history has never seen what the Boumediene majority imposed: Alien enemy prisoners at war with U.S. forces and detained outside the United States have the same right as criminal suspects to challenge their capture in civilian courts. Hundreds of years of practice, and the decided views of the elected branches, to which the Constitution gives all the powers over war, were tossed overboard.

Conservatives and their presidential candidates should agree that the power of judicial review does not confer a bonus of judicial supremacy. Judicial review refers to the right of the federal courts to refuse to obey laws that violate the Constitution. As first explained by Chief Justice John Marshall in Marbury v. Madison (1803), a case may call on federal judges to choose between a constitutional provision and an Act of Congress when deciding whether a plaintiff or defendant should win. A court must uphold the former over the latter; otherwise “it would be giving to the legislature a practical and real omnipotence” and would “subvert the very foundation of all written constitutions.”

With judicial review, neither the president nor Congress can force the courts to cooperate with their unconstitutional actions. But notice that this right is not unique to the courts, and Marbury never claimed it was. Presidents and congressmen have the same obligation to refuse to violate the Constitution. Indeed, many of our nation’s greatest constitutional debates occurred first on Capitol Hill or in the White House before they ever reached the courts. Whether the federal government could establish a national bank was first resolved on the floor of the House and Senate, which passed the bill, and by Pres. George Washington, who chose to sign it, decades before the Supreme Court upheld the Bank of the United States in McCulloch v. Maryland.

And the elected branches, at times, have used their unique powers to oppose judicial opinions. Thomas Jefferson, for example, refused to accept the constitutionality of the Alien and Sedition Acts, which had made criticism of the government a crime, even though the federal courts had upheld the law. When he took office in 1801, he ordered all prosecutions dropped and pardoned those already convicted. “You seem to think it devolved on the judges to decide the validity of the sedition law,” Jefferson later explained to Abigail Adams. “But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.”

Jefferson was no outlier. Other great presidents used their constitutional powers to take on the courts. Andrew Jackson famously vetoed legislation rechartering the Bank of the United States because he believed the law was unconstitutional, even though the Supreme Court, the first Congress, and Presidents Washington and James Madison had all approved it. “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” Jackson declared in his veto statement. “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” he emphasized, and “on that point the president is independent of both.”

Abraham Lincoln, whom Gingrich explicitly invokes, presents the most aggressive case. In large part, Lincoln rose to prominence through his opposition to a single Supreme Court decision, Dred Scott v. Sandford, which overturned Congress’s efforts to restrict slavery in the territories. In his famous debates with Sen. Stephen Douglas, Lincoln claimed that the judgment in Dred Scott applied only to the parties in the case itself, and that the Court’s reasoning explaining the decision could not compel the other branches. Lincoln, in other words, would have forced the courts to hear each individual case before a master could seize a slave; as president, he would give the judges no help. “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln said in his first inaugural address, “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.”

Our greatest presidents, in other words, agreed with Gingrich’s claim that Supreme Court decisions do not bind the other branches. Judicial supremacy, however, goes far beyond the Court’s modest power of review, one hemmed in by the other branches and their own views of the founding document. Supremacy stands for the idea that the Supreme Court is not just an interpreter of the Constitution, but the interpreter — its opinions prevail over those of any other branch of government. The Court did not announce this stunning doctrine until 1958, as it confronted southern resistance to Brown v. Board of Education’s desegregation of the public schools. In Cooper v. Aaron, the Court declared that state officials could not interpose a different interpretation of the Fourteenth Amendment’s guarantee of equal protection of the laws. It is a “basic principle,” the Court claimed, that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The Supreme Court’s decisions, the justices asserted, are “the supreme law of the land” — apparently on a par with the text of the Constitution itself.

Gingrich is right to criticize the Warren Court’s extravagance; conservatives and their candidates should share his disagreement. Cooper itself need not have gone so far; the case involved a conflict between federal and state officials, not between the Supreme Court and the president or Congress. But the case heralded the rise of the judiciary as the arbiter of our nation’s controversies. Constitutional litigation became the Left’s end run around the democratic process when politics and public opinion blocked its social agenda. It is far easier to persuade five justices to find a new right to abortion or homosexual sodomy, or to drive religion from the public square, or to expand the rights of criminal defendants, than to persuade a majority of state and federal legislators.

While the question has come up rarely since Cooper, the Court has gotten away with similar moves at least twice. In one case, the justices struck down the Religious Freedom Restoration Act of 1993 for attempting to reverse a Supreme Court decision that had downgraded protections for religious minorities. In another, they blocked a law that sought to overturn the oft-criticized Miranda warnings (probably the only part of the Constitution that most Americans can recite from memory that is not in the Constitution). Ironically, both decisions issued from the allegedly conservative Rehnquist Court. While Pres. Richard Nixon nominated judges who were hostile to the Warren Court revolution, apparently one agreeable part of it was judicial supremacy. And who wouldn’t like it, once he put on the black robes? The Rehnquist Court’s failure to reject judicial supremacy shows that this threat to constitutional government is not a partisan issue, and that we cannot rely on judges alone to confront it.

Diagnosing the courts’ ills should not divide conservatives. Finding the right cure might. Gingrich proposed a number of possible remedies of varying soundness, including restricting the jurisdiction of federal courts, impeaching ideological judges, eliminating liberal courts such as the U.S. Court of Appeals for the Ninth Circuit (which covers the West Coast), and hauling judges before congressional hearings. The last is simply a bad idea: Gingrich would have federal marshals lay hands on federal judges, under the power of a subpoena, if they refused to show up before Congress. Anyone who recoiled at President Obama’s clumsy partisan attack on the Supreme Court over a campaign-finance case during his 2010 State of the Union address should reject the proposal. Such hearings would be useless anyway — any judge worth his salt would merely spend the hearing reading his opinion out loud.

These extremes should not obscure the sensible principle at the proposal’s core. The Constitution is not the exclusive purview of the courts, and the elected branches can and should use their power to influence constitutional meaning themselves. Some of Gingrich’s proposals have a historical pedigree. Congress, which has the constitutional authority to create the lower federal courts, has eliminated judgeships in the past. In 1802, Jeffersonians repealed the new judicial positions that had been created by a lame-duck Congress under control of the Federalist party and filled by Pres. John Adams. Congress has narrowed the jurisdiction of the Supreme Court to reduce its ability to review policy, most notably during Reconstruction, when the justices threatened to end military government of the South. Impeachment for reasons other than corruption is not unheard of either, though it has not seen much use since Jefferson’s effort to remove Justice Samuel Chase failed in the Senate. So most of Gingrich’s ideas have precedent on their side; his mistake, I think, is that he attempts to combine all of these tools to retaliate against individual judges or courts for specific decisions, instead of attacking the more general doctrine of judicial supremacy.

Gingrich seeks to correct the judiciary’s half-century leftward lurch, a laudable and monumental task, by fiddling with the structure of the courts and judicial independence. All of that is fine and well, but in the end it may have little effect. Conservatives can take a lesson from Pres. Franklin Roosevelt’s failed court-packing plan. FDR proposed to increase the Supreme Court by six seats in an obvious effort to change the justices’ resistance to the New Deal. He lost the battle — the bill failed — but won the war. The Court changed direction swiftly, in decisions that today provide the constitutional theories for Obamacare’s takeover of health care nationwide. But FDR’s political agenda crashed and burned — the New Deal stalled, southern Democrats blocked the rest of his plans, and his presidency might well have failed if it had not been for his greatness in leading the nation through World War II.

Borrowing from the wisdom of George Costanza, a Republican president should say to the courts: It’s not you, it’s me. Instead of tinkering with the judiciary, conservatives should seek to restore the role of the presidency by using its unique powers to define the Constitution. A Republican president, for example, could order prosecutors to stop enforcing unconstitutional laws that violate federalism, separation of powers, or individual rights. He could veto unconstitutional laws, instead of leaving the job up to the courts. He could place constitutionality on a par with cost-benefit analysis in issuing regulations or conducting foreign policy. He could nominate only judges who reject judicial supremacy and understand the courts’ modest role vis-à-vis the political branches.

Under rare circumstances, a Republican president could even refuse to obey a Supreme Court decision. In time of war, he could refuse to release terrorist leaders from Guantanamo Bay — should the federal courts ever make the mistake of interfering so excessively in national-security policy. He could take inspiration from Lincoln, who in the early days of the Civil War refused a direct order by Chief Justice Roger Taney to release a Confederate sympathizer held at Fort McHenry in Baltimore (Taney, the author of Dred Scott, was sitting as a circuit judge at the time). Just as the courts need not cooperate with the unconstitutional actions of other branches, the president need not let the Supreme Court have its way when the Constitution vests all of its war powers in the elected branches. Of course, presidents should make clear that this extreme measure would be taken only in times of the direst emergency. Republican candidates can join Gingrich in restoring the proper balance of power between the president and the courts, without following his suggestion that the extraordinary should become the everyday.

– Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003 and is co-author of Taming Globalization: International Law, the U.S. Constitution, and the New World Order, forthcoming this spring.

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