Gingrich Campaign Press Release - Newt 2012 Responds to Andrew Cohen On Judicial Supremacy

Elected Branches Have Duty To Defend the Constitution When They Believe The Courts Are Wrong

In his critique of Newt Gingrich's view of the constitutional powers of the executive and legislative branches to check and balance the judicial branch, Andrew Cohen writes that "congressional subpoena power, like all subpoena powers, is subservient to the Constitution, which is interpreted, in the final analysis, by the federal judiciary and not by Congress."

Gingrich rejects this theory of judicial supremacy that Cohen restates, which holds that interpretations of the Constitution are binding interpretations on the other two branches. If the Supreme Court renders decisions that the President and Congress believe are unconstitutional, then Gingrich believes the executive and legislative branches are bound by their oaths of office to use their constitutional powers to check and balance unconstitutional decisions of the Court.

Cohen was reacting to Gingrich's comments on a Sunday talk show about the idea of subpoenaing judges as one way to help bring the Courts back under the Constitution, a subject Gingrich addressed in a speech last week. But Cohen should also read the lengthy position paper Newt's campaign put out on the same subject last Friday. Many jurists and law professors would have the public believe that the only way to challenge certain decisions of the Supreme Court is to pass a constitutional amendment. Not so.

Congress asking federal judges to come before the relevant committee upon occasion to explain certain decisions is only one of many things the political branches can do to counteract unconstitutional decisions. The political branches could also limit the jurisdiction of the federal courts, impeach federal judges, abolish lower court judgeships, limit the application of a decision, or ignore a decision.

In his piece, Cohen quotes Harvard Law Professor Laurence Tribe, who said that Gingrich's ideas represent a "frontal assault on the independence of the federal judiciary, which is a bulwark of a constitutional system that has served us well as a nation ever since Marbury v. Madison."

First off, citing Marbury v. Madison as the fountain of the Constitutional authority for the powers of the judicial branch is a customary thing that defenders of the model of an all-powerful federal judiciary do. Professor Tribe should and certainly does know better. The Supreme Court defining the parameters of its own authority in its own judicial decisions is no different than Congress defining their Constitutional authority from a joint resolution passed by both Houses of Congress, or the President defining his/her Constitutional authority via an executive order. Thus, the text of the Constitution and the writings of the Founders must be consulted for a meaningful answer about the powers of the federal judiciary. Otherwise, the Supreme Court derives its authority from its own opinions of its authority.

President Thomas Jefferson and Congress abolished over half of all federal judgeships after the election of 1800. Article I, Section 8 empowers Congress to create lower federal courts, which implies the power to abolish them. The Supreme Court in Stuart v. Laird implicitly acknowledged the judicial branch's acceptance of the constitutionality of abolishing lower federal courts.

Article III, Section 2 sets forth the power of Congress to regulate the appellate jurisdiction of the Supreme Court and, implicitly, the jurisdiction of all inferior courts.

Article II, Section 4 provides for impeachment and removal from office all civil officers of the United States, which includes federal judges. Alexander Hamilton was quite clear in Federalist 81 that he believed the judicial branch was the weakest branch, due to its "comparative weakness, and from its total incapacity to supports its usurpations by force."

Hamilton believed that judicial usurpations of the Constitution would be thwarted by the legislature. How? Hamilton said in Federalist 81 that it could be done through the "important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted (sic) with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations."

And as for asking judges to come coming before Congress for questioning, the idea is not extraordinary. Senate committees are known today to ask judges subject to Senate confirmation to come before congressional committees in the future. The question has been phrased like this by a Senator to a judge up for confirmation: "Do you agree without reservation to respond to any reasonable summons to appear and testify before any duly constituted committee of Congress if you are confirmed?"

And what does Professor Tribe make of Abraham Lincoln's "assault on the independence of the federal judiciary" since Lincoln as a candidate for public office, then as President, endlessly critiqued the Supreme Court's decision in Dred Scott? In Dred Scott, Supreme Court members voted 7-2 for the constitutional interpretation that blacks who came to America and held as slaves, and their descendants, were not protected by the Constitution and could never be U.S. citizens.

Does Professor Tribe believe that President Lincoln should have merely acquiesced in that decision, like his predecessor President James Buchanan did? President Lincoln did not acquiesce. He believed the Supreme Court's decision was an erroneous interpretation of the Constitution, and as President, Lincoln acted in accordance with his own understanding of the Constitution. In defiance of the Supreme Court's ruling in Dred Scott, Lincoln issued U.S. passports to freed slaves, thus treating them as citizens, and signed legislation restricting slavery in the western territories in stark defiance of the holding of Dred Scott.

In his First Inaugural, Lincoln stated plainly what he thought about the dangers of judicial supremacy:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Lincoln was not the only President concerned that the idea that Supreme Court decisions should irrevocably fix the policy of the government on vital questions affecting the whole of the people would mean the end of self-government. Thomas Jefferson wrote that "[t]o consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which place us under the despotism of an oligarchy."

Cohen also asked Bruce Fein to weigh in on Gingrich's remarks. Fein seems to restate the principle of judicial supremacy by invoking what he believes to be the "time-honored principle that federal judges are not accountable to any other branch for their judicial opinions." I guess it depends on what Fein means by "accountable".

If Fein means that the two other branches have to accept always the decisions of the Supreme Court as controlling on their actions, then Fein is wrong, both constitutionally and historically. The issue Gingrich is raising is that in those circumstances when federal judges issue decisions that the executive and/or legislative branches believe to be seriously in constitutional error, then the political branches may on such exceedingly rare occasion decide to take corrective action, including limiting the application of a decision, ignoring the decision of the Court, limiting the future jurisdiction of certain federal courts, impeaching judge(s) for unconstitutional rulings, and abolishing judgeships.

Fein goes on to say that Gingrich is proposing to "overthrow the Constitution" by invoking constitutional checks and balances.

How can it be seen as overthrowing the Constitution if Gingrich is calling for the exercise of constitutional powers in certain well-defined and limited circumstances? And then in a non sequitur, Fein writes "to believe that Congress or the President would condemn their own acts as unconstitutional encroaches on the domain of delusion."

It's not clear what Fein is saying. Gingrich is not challenging the power of the Supreme Court to review the constitutionality of executive and legislative branch actions. That's an important constitutional check on the political branches, as is regular elections in which the people can hold elected officials accountable for unconstitutional actions. What Gingrich is asserting is that upon occasion the Supreme Court may get it wrong constitutionally, in which case the executive and legislative branches are duty bound to act. That's the point of separation of powers among three co-equal branches of government with each having constitutional checks and balances on the actions of the other two. Usually, two branches against one wins when it comes to determining the outcome of a constitutional dispute among the three branches.

Or does Fein believe that the Supreme Court is the only branch incapable of acting unconstitutionally? Does Fein believe that federal judges and the Supreme Court always bat 1.000? Infallible courts? Really?

Finally, Cohen gets a quote from sitting federal judge John Kane of U.S. district court for the district of Colorado. Kane says that Gingrich apparently seeks to replace the rule of law "with what, the rule of intimidation?" Kane goes on to write that:

does [Gingrich] not know that judges always explain their opinions by making findings of fact and conclusions of law? If a judge errs in doing so, there is a court of appeals waiting to correct the error, and if a court of appeals errs, there is always the Supreme Court as the final arbiter. The process, unlike that suggested by Mr. Gingrich, is based on reason and cherished as a fundamental element of our national heritage.

Judge Kane can be assured that Gingrich knows how the federal courts are designed to work. But apparently Judge Kane believes that reason is a unique province of the federal courts, and not capable of being exercised by the executive and legislative branches when it comes to exercising constitutional powers to check and balance the courts when they deem it necessary.

Was President Lincoln unreasonable to oppose Dred Scott? Moreover, Judge Kane must believe that reason is a faculty that escapes we the people when it comes to our decisions on who should hold elective office and what laws should be passed, modified, or repealed. It may be a surprise to some in the legal profession, but the faculty of reason is also developed outside of law schools.

Judge Kane, in his own exercise of reason, must also be aware that federal courts, including the Supreme Court, are not always the best protectors of constitutional liberties and sometimes get it wrong. And when judges get it wrong, they often get it spectacularly wrong.

Does Judge Kane wish to defend the reasoning of Dred Scott, Plessy v. Ferguson, Korematsu, or Roe. v. Wade?

The principal concern with the views of Cohen, Tribe, Fein, and Judge Kane (and their notions of judicial supremacy) is that they treat federal judges and federal courts generally as incapable of error and immune to human nature's propensity to err when endowed with unchecked power. These gentlemen seem to take it as an article of faith that the judiciary's role has always been as extensive as it is now—that its power has always been so great and its constitutional authority considered sacrosanct. That simply is not the case and to suggest otherwise is revisionist.

What this group should have noticed, but which has gone unrecognized by them and many others, is that we find ourselves now, after several generations, facing a federal judiciary with powers that have grown enormously, addressing itself to more and more matter as if most public policy questions were constitutional questions about which only the courts have full dominion. As the NEWT 2012 position paper makes clear: "The result is that courts have become more assertive and politicized to the point of an abuse of power. As federal courts have intervened in sectors of American life never before imaginable, the public has increasingly come to view them as an usurpative device for unelected rulers. This abuse of power and loss of public confidence amounts to a constitutional crisis."

The absence of significant attention to the Supreme Court's usurpation of judicial interpretive supremacy is a gross oversight of the legal academy (and many undergraduate schools of political science), with the exception of a small number of scholars and elected officials who have considered it. The result is that one of the most significant and wide-ranging development in the relationship among the three branches of the federal government goes largely ignored by those whose very job it is to study it.

Fortunately, the Constitution does not accord judicial interpretive supremacy to the courts but instead provides means for the political branches to hold the courts accountable in those rare cases when they exceed the judicial power.

Gingrich would not be the first president to reject judicial supremacy. If elected, and if necessary in rare circumstances, Gingrich would be prepared to take constitutional actions, in coordination with the legislative branch or, if appropriate, solely in the role as head of the executive branch, to check and balance what he considered to be unconstitutional judgments of the federal courts. Jefferson, Jackson, Lincoln, and FDR were all Presidents who took this position. So would Gingrich.

Even ardent supporters of a Federal judiciary (like Hamilton in Federalist Nos. 78 and 79) assumed that judicial independence was based on the premise that the courts would adhere closely to the TEXT of the Constitution, as the embodiment of the people's will. The cases that Gingrich is highlighting involve clear abuses of constitutional interpretation of that text. In short, the very notion of deference to judicial opinion requires a countervailing obligation on the part of the judiciary to actually interpret the Constitution and relevant laws and not to read into it, with complete impunity, whatever a given majority of federal judges want irrespective of a constitutional basis.

Newt Gingrich looks forward to having a national conversation over the next year about reestablishing a Constitutional balance among the three branches, how best to bring the Courts back under the Constitution, and formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges.

The rejection of judicial supremacy and the reestablishment of a constitutional balance of power among the legislative, executive, and judicial branches will be an intense and difficult undertaking. It is unavoidable if we are going to retain American freedoms and American identity.

Vince Haley

Policy Director, NEWT 2012