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.”

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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.”)