Newt Gingrich’s Crazy Attacks on the Federal Courts

The law, lawyers, and the court.
Dec. 19 2011 5:27 PM

Courting Disaster

Newt Gingrich's ill-advised war on the only branch of government that people believe in.

Newt Gingrich.
Why is Newt Gingrich attacking the federal courts?

Photograph by Kevork Djansezian/Getty Images.

For a self-confessed epic character, Newt Gingrich has stage-managed himself into an epic piece of political stupidity. With his escalating attacks on the federal judiciary, he has confirmed that, if elected, he would place himself atop a government that simultaneously manages to be both a dictatorship and a theocracy. In recent weeks—and just as his presidential star was improbably rising—he doubled down on his initial claims that the federal courts “have become grotesquely dictatorial and far too powerful,” to offer up new promises that, as president, he would abolish federal judgeships, occasionally ignore the Supreme Court, and—in the manner of a tiny tyrant in khaki shirts and mirrored sunglasses—have federal marshals arrest errant federal judges and force them to testify before Congress about their unpopular decisions.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

One is tempted to open up a can of lofty rhetorical whoopass to explain why each of these ideas offends the basic constitutional principles of separation of powers, and judicial independence, but really, why? Does anyone even have to explain why Gingrich’s plans to construct a federal judiciary out of his own rib, then terrorize it into imposing his constitutional vision on the nation is a staggeringly bad one? Not really, given that conservative commentators have ably done so already. Former Bush Attorney General Michael Mukasey last week called the Gingrich court plan “ridiculous,” “irresponsible,” “outrageous,” and “dangerous” and former Bush Attorney General Alberto Gonzales called it “intimidation or retaliation against judges.” Conservative legal analyst Edward Whelan dismissed Gingrich's proposal for abolishing judgeships "as constitutionally unsound and politically foolish." Conservative columnist George Will poked fun at Gingrich’s hysterical rant about how the 9th Circuit’s decision that the word “God” in the Pledge of Allegiance was unconstitutional was comparable to the court’s infamous Dred Scott decision. Wrote Will: “Really? It took four years of war and 625,000 dead to settle the slavery question; it took a unanimous Supreme Court a few minutes to swat aside the 9th Circuit’s silliness.”

It’s silliness indeed for Gingrich to focus an attack on an entire “arrogant,” “elitist,” and “grossly dictatorial” judicial branch by paying obsessive attention to the California Pledge case (that was overturned) and a Texas district court decision (that was also overturned). By his lights this should be a sign of the one branch of government that actually works. Gingrich saves extra scorn for Anthony Kennedy (who sometimes “gets up as a conservative” and sometimes “gets up as a liberal,”) and for the landmark 1958 ruling in Cooper v. Aaron—the seminal (and unanimous) civil rights case barring Arkansas from simply nullifying federal school integration rulings. Gingrich dismisses Cooper as “factually and historically false.”

Advertisement

Also, if there is a dumber idea than having judges who already issue written opinions being hauled before Congress to explain the very reasoning they have painstakingly rendered in writing, I can’t imagine it. But Gingrich is so in love with his proposed mechanisms to replace the judgment of nine puffed-up elitists with the judgment of just one puffed-up elitist, he seems unable to appreciate the irony.

Given that not a single serious constitutional thinker has lined up behind Gingrich’s proposals to do away with judicial independence (and Gingrich says that’s because historians know more about such matters than lawyers anyhow) the real question is not so much why is he spewing all the wackadoo, as what can he possibly be thinking? What can Gingrich be seeking to achieve when he attacks a judicial branch that is—as my friend Jess Bravin notes—“widely considered to be the most conservative since the 1930s.” (Bravin goes on to point out that Gingrich should be more careful picking fights with his friends, since, if “a President Gingrich were to follow through with his plans, he would almost certainly provoke a constitutional conflict with the head of the federal judiciary—Chief Justice John Roberts, who, as it happens, Mr. Gingrich has cited as one of his favorite justices.”)

TODAY IN SLATE

History

Slate Plus Early Read: The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Transparent Is the Fall’s Only Great New Show

The XX Factor

Rehtaeh Parsons Was the Most Famous Victim in Canada

Now, journalists can't even say her name.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

  News & Politics
Foreigners
Sept. 29 2014 10:00 PM “Everything Must Change in Italy” An interview with Italian Prime Minster Matteo Renzi.
  Business
Moneybox
Sept. 29 2014 7:01 PM We May Never Know If Larry Ellison Flew a Fighter Jet Under the Golden Gate Bridge
  Life
Dear Prudence
Sept. 30 2014 6:00 AM Drive-By Bounty Prudie advises a woman whose boyfriend demands she flash truckers on the highway.
  Double X
The XX Factor
Sept. 29 2014 1:52 PM Do Not Fear California’s New Affirmative Consent Law
  Slate Plus
Slate Fare
Sept. 29 2014 8:45 AM Slate Isn’t Too Liberal, but … What readers said about the magazine’s bias and balance.
  Arts
Brow Beat
Sept. 29 2014 9:06 PM Paul Thomas Anderson’s Inherent Vice Looks Like a Comic Masterpiece
  Technology
Future Tense
Sept. 30 2014 7:36 AM Almost Humane What sci-fi can teach us about our treatment of prisoners of war.
  Health & Science
Bad Astronomy
Sept. 30 2014 7:30 AM What Lurks Beneath The Methane Lakes of Titan?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.