Newt’s Right: The Supremacy of the Courts Is a Huge Constitutional Problem

The law, lawyers, and the court.
Dec. 20 2011 11:23 AM

Newt and His Surprising Liberal Allies

He’s not the only one who thinks there is a huge problem with giving the Supreme Court final say on the Constitution.

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These scholars, and others in the legal academy (and some political scientists as well), have expressed discomfort with the theory of judicial supremacy. First, judicial supremacy is inconsistent with democratic values. When judges strike down statutes they deprive voters of the power to determine the laws under which they must live. An earlier view, inspired by judicial protection of the civil rights of minorities in the 1950s and 1960s, held that judicial review is essential to democratic participation. But that view has lost favor as it has become clear that judges care more about substantive outcomes than about protecting the franchise. A jurisprudential agenda that sought to guarantee democratic participation has ended up diminishing it.

Second, judges make errors, and are not very good at making policy or understanding public opinion—a point made forcefully in writings by Adrian Vermeule, a Harvard Law School professor. However much we complain about Congress, members of Congress are more closely attuned to public opinion than judges are, and much more experienced in the fashioning of policy.

In other advanced democracies, things work differently. Governments can correct judicial interpretations by re-enacting a law, satisfying some procedural requirements, or amending the Constitution under rules far easier to satisfy than ours. Judges on constitutional courts occupy office for short terms rather than enjoy lifetime tenure, so they can be replaced if their rulings diverge too far from public opinion. These systems work reasonably well. Americans sometimes claim that American democracy compares favorably to the more hierarchical, bureaucratic systems in European countries. Yet Americans have ceded to judges control over their destinies to a much greater extent than Europeans have.

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But if Gingrich is right to raise questions about our system of judicial supremacy, he characteristically takes things too far. His embrace of departmentalism or popular sovereignty, which gives the people the right to settle constitutional disputes through their elected representatives, contradicts his jurisprudential originalism, which requires judges to enforce popular constitutional understandings circa 1789. To avoid incoherence, he must drop one commitment or the other.

Moreover, Gingrich’s reliance on history is selective, to say the least. He ignores a major negative precedent—Jefferson’s disastrous attempt to engineer the impeachment of Supreme Court justice Samuel Chase, a staunch Federalist who opposed Jefferson’s policies. Chase was acquitted after a politically damaging trial, which helped set a precedent against using impeachment to punish ideologically wayward judges. And Gingrich neglects to mention that all of the presidential confrontations with the Supreme Court stirred immense, often crippling, controversy. These presidents’ actions may well have been justified, but history shows that any effort to oppose the Supreme Court will incur high political costs, and so should, if merely as a matter of political prudence, be undertaken only in extreme circumstances.

Do such circumstances exist today? Gingrich cites the Supreme Court’s decisions on religion, a shrewd move, because this is one area in which the Court’s jurisprudence strays far from public opinion. However, because it is easy to ignore the Court’s rulings in this area—civil disobedience in the form of prayer in school is ubiquitous—a battle against the Court would stir little public support. Gingrich also says that he would ignore Boumediene v. Bush, a poorly reasoned decision in which the Court held that detainees at Guantanamo Bay enjoy habeas rights.

But Boumediene has not interfered with the president’s ability to maintain national security, and so this case seems like a thin reed on which to base a constitutional showdown as well. Current political and ideological divisions are nowhere near as extreme as they were at the founding, on the eve of the Civil War, in the midst of the Great Depression, and in the South in the 1950s. Unlike in those eras, today’s Supreme Court has not blocked the political agenda of only one side. It has offered gun rights and restrictions on campaign finance reform to conservatives, and gay rights and limits on war-on-terror laws to liberals. Indeed, liberals have been remarkably patient with a basically right-wing court, which has produced few decisions for a Republican like Gingrich to complain about. There is no political coalition for putting the Court in its place, just occasional wisps of populist resentment with no power to sustain a campaign.

There is an irony here. Gingrich fancies himself a big-ideas man, but he is really just a politician with an interest in history and a penchant for bombast, and what he needs are ideas that will carry him to the White House. The attack on judicial supremacy is a big idea, and even a good idea, but it is not one whose time is ripe.

Also in Slate, read Dahlia's Lithwick take on Gingrich and the judiciary.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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