Gingrich Campaign Press Release - Newt 2012 Responds to Assertion that the Supreme Court Has 'The Last Word in Interpreting the Constitution'

In their news story about the critiques of the proper role of the judicial branch by a variety of Republican presidential candidates, including Newt Gingrich, Adam Liptak and Michael Shear make the following misstatement of fact that underscores the public's confusion about the proper role of the federal judiciary: "But the Marbury [v. Madison] decision, which gave the Supreme Court the last word in interpreting the Constitution, has its critics."

Marbury v. Madison, a 1803 decision of the Supreme Court, gave no such authority to the Supreme Court to have "the last word in interpreting the Constitution." That's simply not true.

If the Supreme Court has the power to define in its own decisions the constitutional parameters of its own authority vis-à-vis the other two branches – such as giving itself the last word in American politics -- then there is nothing preventing Congress from defining its Constitutional authority in a joint resolution passed by both the Senate and the House to give themselves the last word, or the President defining his Constitutional authority via an executive order to give himself the last word.

So instead of looking to Supreme Court decisions for the constitutional authority of the Supreme Court, the actual 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. And nowhere in the Constitution is the Supreme Court placed in a position with binding authority over the other two branches when it comes to determining the ultimate meaning of the Constitution. In contrast, the Constitution of the United States set up a system of three separate and co-equal branches of government, each branch being empowered with certain checks and balance to be used against the other branches when they exceeded their powers and encroach upon the prerogatives of the other branches. And that includes powers for the legislative and executive branches to be used against the judicial branch when it exceeds its powers.

But Liptak and Shear don't need to take my word for the fact that Marbury does not stand for the proposition that the Supreme Court's interpretation of the Constitution is supreme and binding on the other two branches of the federal government (i.e. "the last word in interpreting the Constitution"). Here is what the Dean of Stanford Law School Larry Kramer writes about this subject:

In 1958...all nine Justices signed an extraordinary opinion in Cooper v. Aaron insisting that Marbury [Marbury v. Madison] had "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution" and that this idea "has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." This was, of course, just bluster and puff. As we have seen, Marbury said no such thing, and judicial supremacy was not cheerfully embraced in the years after Marbury was decided. The Justices in Cooper were not reporting a fact so much as trying to manufacture one. (Kramer, Larry, The People Themselves, Oxford University Press: 2004, 221)

Mark Tushnet is a Professor of Law at Harvard University and he writes the following on pages 113-114 of his 2005 book, Arguing Marbury v. Madison, Tushnet writes:

As has so often been noted, Marshall never claimed supremacy for the Court in Marbury. The opinion ends, after all, with Marshall saying that courts have an equal right to the other departments in interpreting the Constitution. The Court committed itself explicitly to judicial supremacy only relatively recently. In Cooper v. Aaron, for example, the Court stated the "federal judiciary is supreme in the exposition of the law of the Constitution."

Then there is Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. On page 4 of his 2009 book The Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, Whittington writes:

Those who advocate judicial supremacy, including the Court itself, tend to treat it as a matter of normative directive and accomplished fact. The Court has claimed that judicial supremacy follows logically from the constitutional design and that since Marshall's declaration of judicial independence "that principle has ever since been respected by this Court and the Country [quoting Cooper v. Aaron]". But of course this was wishful thinking on the part of the justices.

We have a situation in this country in which the Supreme Court currently operates according to the norm that it alone has the last word in interpreting the Constitution, and that the only things that can reverse the Constitutional interpretations of the Supreme Court are a constitutional amendment or a future Supreme Court decision reversing a prior Supreme Court decision.

But this understanding of the role of the judicial branch is fatally flawed. The Founding Fathers intended the system of checks and balances to operate in the normal course of governing. It was precisely this balance of power among the three branches that the founding fathers believed would protect freedom. They based their understanding of a constitutional division of powers on Montesquieu's writings, which would have explicitly rejected any one branch's supremacy. The amendment process was reserved for making fundamental changes to our constitutional structures; the amendment power was not intended to be used as a way to check and balance Supreme Court decisions. Our founding fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers.

President Abraham Lincoln faced a Supreme Court that believed it had the last word in interpreting the meaning of the Constitution. In its 1857 decision Dred Scott v. Sanford, the Supreme Court 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.

Lincoln believed that 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.

Today, 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. It is no surprise why Republican presidential candidates are calling for the executive and legislative branches to reassert checks and balances on the judicial branch to bring the Courts back under the Constitution.

In a recent speech and a 29-page campaign position paper, Newt Gingrich outlined his rejection of judicial supremacy, the modern theory that the Court alone has the power of judicial interpretive supremacy over the other two branches of the federal government and that the political branches must always acquiesce to the Court's decisions about the ultimate meaning of the Constitution.

Gingrich rejects this theory of judicial supremacy and he rejects passivity as a response to Supreme Court rulings that exceed the judicial power and seek to institute policy changes that more properly rest with Congress. A Gingrich administration will use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.

Vince Haley

Policy Director

Newt 2012