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.
Photograph by Matthew Cavanaugh/Getty Images.
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.
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.
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 a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.