Newt Gingrich has turned his guns on the federal judiciary, and a lot of predictable squealing—from both left and right—about the threat to the rule of law has resulted. But Gingrich’s public statements, and a more elaborate position paper posted at his website, deserve serious consideration.
The brouhaha began at the last Republican presidential debate when Gingrich declared that “the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” In a subsequent TV interview, as well as in the position paper, Gingrich argued that when the president and Congress believe that the judiciary has rendered decisions that violate the Constitution, they should be willing to impeach judges, strip them of jurisdiction, haul them before congressional committees, and abolish courts.
The position paper, “Bringing the Courts Back Under the Constitution,” challenges the theory of judicial supremacy, which holds that the courts enjoy the last word on the meaning of the Constitution. As Gingrich correctly points out, the theory of judicial supremacy does not appear in the Constitution and, while the idea has roots in constitutional history, the Supreme Court’s clearest endorsement of it has surprisingly recent vintage in a case called Cooper v. Aaron, decided in 1958. The founders’ writings shed little light on what should happen when the branches disagree about the Constitution. They differed among themselves and in any event did not have a clear understanding of how the government would operate once set in motion. But Thomas Jefferson did clearly reject judicial supremacy and instead advocated departmentalism, the doctrine that each branch enjoys absolute authority to interpret the Constitution within its domain. And judicial supremacy is hard to reconcile with the Madisonian vision of the branches holding themselves in equilibrium through their efforts to increase their power at the expense of the others. Extended to the Supreme Court, this reasoning implies that the Supreme Court will advance spurious constitutional interpretations to enhance its power, and that Congress and the president must be prepared to resist.
This idea might be unsettling but Gingrich has logic on his side. If judges really had the last word, then there is no remedy if they misinterpret the Constitution—aside from constitutional amendment, which is extremely difficult, and in any event futile if judges then misinterpret the amendment. From a Madisonian perspective, while it is entirely predictable that the Supreme Court would claim that its views prevail over those of the other branches, the other branches have no reason to accept this claim.
It would be different if we could trust judges to interpret the Constitution in a “neutral” fashion, just as religious oracles could once be used to settle political disputes because they gave voice to the gods. But judges are not priests even if they dress like them: They bring to bear their experiences, ideologies, and even partisan sympathies—sometimes consciously, sometimes not. An enormous literature in political science has established this fact beyond doubt. On the controversial issues of the day, liberal and conservative judges often (although not always) disagree along ideological lines. Liberal judges favor civil rights, the rights of criminal defendants, and rights to abortion and sexual freedom. Conservative judges favor property rights, contract rights, and gun rights.
As a result, legitimate policy differences, which ought to be resolved by the people, are instead resolved by judges. These unelected officials make policy on abortion, affirmative action, gun control, health care, campaign finance regulations, immigration, and countless other areas of life. Rather than resist the judicial takeover of policy, elected officials have worked harder to appoint judges who will advance their political views, which has further diminished the space for democratic politics.
Gingrich’s critics say that if the president disagrees with the Supreme Court’s rulings, he can appoint judges with different constitutional philosophies. Note that this response concedes Gingrich’s main points—that judges can get the Constitution wrong and that it is legitimate to resort to politics to change the judges if we cannot change their rulings and constitutional amendment is not an adequate remedy. But resolving policy disagreements with judicial appointments is to conduct policy from the wrong end of the telescope. It takes years for judges to influence policy outcomes, and the elected officials who appoint them can predict how they will do so only with difficulty.
Gingrich enjoys another set of surprising allies, though these people probably would disclaim the allegiance: a group of mostly liberal law professors who have criticized judicial supremacy and have tried to resurrect various forms of popular sovereignty. These professors include Larry Kramer, the dean at Stanford Law School; Mark Tushnet, a professor at Harvard Law School; Jeremy Waldron, a legal philosopher at NYU; and Cass Sunstein, a Harvard professor who currently holds a high-level position in the Obama administration.