Gingrich vs. the Judiciary

With his poll numbers finally starting to tumble, GOP Presidential candidate Newt Gingrich is going full-on demagogue:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings.

“I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of “judicial supremacy” and restrain judges to a more limited role in American government. “The courts have become grotesquely dictatorial and far too powerful,” he said in Thursday’s Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

[...]

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in “extraordinary” situations.

An “extraordinary” situation, I presume, would be one in which the courts don’t rule the way Mr. Gingrich wants them to.

Lawyer and libertarian blogger Doug Mataconis lets him have it:

Gingrich’s suggestion yesterday that he would feel free to ignore Supreme Court decisions that he disagrees with is particularly dangerous. When I wrote about this on Friday, I noted the examples from history that Gingrich typically cites when he talks about this issue. Each one of them, from Jackson ignoring the Court’s rulings on Indian removal, to Lincoln ignoring the court rulings on his blatantly unconstitutional suspension of the Writ Of Habeus Corpus, to FDR’s effort to strong-arm the Supreme Court with his court packing plan, involved instances where the Executive Branch was seeking to expand its own power by ignoring the rulings of a co-equal branch of the Federal Government. If Newt Gingrich thinks its okay for him to ignore a Supreme Court decision on same-sex marriage, then that also means that it would be okay for Barack Obama  to ignore the Supreme Court if it declares the PPACA unconstitutional next June. If Arizona can ignore the Supreme Court saying that its immigration law its unconstitutional, then California can ignore the Supreme Court saying that its decision not to enforce immigration laws.

Moreover, as a supposed historian, one would think that Gingrich would recognize the historical roots of his argument. It’s not unlike the doctrine of nullification that was widely popular in the Southern United States before the Civil War, and reasserted itself some 100 years later. After the Supreme Court issued its ruling in Brown v. Board of Education, most of the states in the Southern United States undertook efforts to evade having to comply with the ruling or ignore it all together. Prince Edward County, Virginia, for example, took the extreme step of closing all of its public schools rather than comply with court-ordered desegregation. In doing so, the country provided “tuition grants” to all students regardless of race, but none of the private schools in the county would admit African-American students. In 1964, the Supreme Courtdeclared this policy unconstitutional. Other southern states asserted the discredited theory of interposition to argue that they had the authority to ignore the Court’s ruling in Brownan argument which the Supreme Court rejected unanimously. In essence then, Newt Gingrich takes the same position on SCOTUS rulings he dislikes that southern segregationists did after Brown. They are as discredited now as they were then.

What’s most striking about Gingrich’s position on this issue, though, is the violence it does to the principle of Separation of Powers. Under our Constitution, the Executive. Legislative, and Judicial Branches are deemed co-equal within their own spheres of power. Gingrich, however, proposes ideas that would completely upend this system by drastically reducing judicial independence. Requiring Federal Judges to appear before Congress every time they issue a decision that some Committee Chairman decides they don’t would be an utter disaster. For one thing, it’s entirely likely that this Congressional power would quickly become subject to abuse as Congressmen and Senators use such hearings not only for political grandstanding but also to put pressure on judges to rule in a certain way in pending cases. Judges would quickly be faced with the dilemma of following the law as best they could and worrying about whether the ruling they issue means they end up on C-Span in three months time getting grilled by a Senator with dreams of running for President one day. It would be the death of judicial independence, and would be harm the rights of those seeking their day in Court who would find that there is an 800lb gorilla called the United States Congress looking over the Judge’s shoulder.

Another thought occurs, of course. If Gingrich believes that it would be proper for Congress to summon a Supreme Court Justice before it to explain themselves, then why wouldn’t it also be proper to summon the President himself before Congress to be questioned and forced to explain the basis for his decisions? What Gingrich is really talking about here is an idea that would set off a Constitutional crisis between the three branches of government.

You’d think a “small government” politician would support a strong and independent judiciary, wouldn’t you?

Update: when you’ve gone too far for Ann Coulter…

Update II: Harry’s Place compares Gingrich’s attitude toward the judiciary with that of Hugo Chavez.  That’s gotta hurt.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in American Politics, Constitutional Law, Constitutional Law (USA), Judiciary. Bookmark the permalink.

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