Gingrich Campaign Press Release - Newt 2012 Responds to Ian Millhiser on Judicial Supremacy

Ian Millhiser of Think Progress has published a four-part critique of Newt Gingrich's rejection of the idea that the Supreme Court's constitutional interpretations are supreme and binding on the other two branches of the federal government (i.e. judicial supremacy) even if the other two branches believe the Court has violated the Constitution. Millhiser also criticizes the constitutional and historic bases supporting the federal executive and legislative branches assertion of constitutional powers to check and balance the federal judicial branch when they believe the judicial branch violates the Constitution.

Millhiser states the basis of his support for judicial supremacy at the outset (and thus the rationale for his opposition to Gingrich's rejection of judicial supremacy):

What Gingrich labels"judicial supremacy"is merely the Supreme Court's authority to be the final word on constitutional interpretation, and this authority was recognized long before 1958. Indeed, it was first announced by the Supreme Court's landmark 1803 decision in Marbury v. Madison‘s declaration that "[i]t is emphatically the duty of the Judicial Department to say what the law is." By questioning Marbury, Gingrich questions the very foundation of constitutional governance. If an independent judiciary cannot issue binding constitutional rulings, then the Constitution as a whole is meaningless because the only thing enforcing it is the willingness of government officials to comply with it completely voluntarily.

First off, the Supreme Court defining in its own judicial decisions the parameters of its constitutional authority vis-à-vis the other two branches 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. It's therefore wholly inadequate to citeMarbury v. Madison as the basis of the judicial branch's constitutional authority over all three branches of the federal government, even though defenders of the model of an all-powerful judiciary do it all the time. The actual text of the Constitution and the writings of the Founders are actually what 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.

But Millhiser doesn'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. 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)

Before getting to Millhiser's other critiques of Gingrich, we must first take a detour to respond to Millhiser's charge that Gingrich's reference to the Cooper v. Aaron decision amounts to, in Millhiser's words, "attacking the Supreme Court for desegregating Arkansas' schools."

Nowhere in his speech did Gingrich attack the Supreme Court for desegregating Arkansas's schools in Cooper v. Aaron. Nowhere in the Newt 2012 campaign document is there any attack on the Supreme Court for desegregating Arkansas' schools.

Gingrich rejects judicial supremacy, which was first articulated as dicta in Cooper v. Aaron. In judicial decisions, as Millhiser surely knows, dicta is different from the actual legal reasoning that supports the holding of a judicial decision. In Cooper, the Court's assertion of judicial interpretative supremacy of the Constitution vis-à-vis the other two branches of the federal government was not necessary as a basis of its holding that state governments, in this case Arkansas, had to abide by the Court's decisions. Article VI of the Constitution, which holds that the Constitution is the supreme law of the land "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," was more than an adequate basis for the decision.

Yet, in Millhiser's telling, Gingrich's observation that the Court claimed judicial supremacy for itself for the first time in Cooper amounts to opposition to desegregation.

Millhiser's strange conclusion will be news indeed for the number of legal scholars who have made the same observation as Gingrich about the Court's assertion of judicial supremacy in Cooper.

Millhiser can start with calling Dean Kramer at Stanford Law School, cited above commenting onCooper v. Aaron, and ask him whether his observation of the Court's assertion of judicial supremacy in Cooper means that Kramer opposes desegregation.

But there are other scholars with whom Millhiser can test out his thesis.

Mark Tushnet is a Professor of Law at Georgetown University. 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."

Does Millhiser think Professor Tushnet opposes desegregation owing to his observation aboutCooper?

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.

Does Millhiser think Professor Whittington opposes desegregation owing to his observation aboutCoooper?

And what about Christopher Wolfe and Michael McConnell? White edited the 2004 book That Eminent Tribunal: Judicial Supremacy and the Constitution, in which McConnell, a former federal circuit court judge and now the Richard and Frances Mallery Professor of Law at Stanford Law School, contributed a chapter. In his chapter, on p. 142, McConnell writes:

Almost all courses in American constitutional government begin with Marbury. It is literally true that in many constitutional law classes the students read and analyze Marbury before they ever read the Constitution. One of the two best selling casebooks in constitutional law-- Gerald Gunther's magisterial Constitutional Law, now in its thirteenth edition - begins with Marbury and relegates the Constitution to Appendix A. The subtle point conveyed by this organization is that the fountainhead of constitutional law is not the act of the People in 1787, but the decisions of the justices of the Supreme Court.

And the picture of Marbury presented in most constitutional law classes is one in which the heroic chief justice, John Marshall, refutes one bad argument after another against judicial review, thus casting the Court in its majestic role as the expositor of the Constitution. Put aside the fact . . .that this story bears little resemblance to what Marbury v. Madison was actually about in its historical context. The key point is that constitutional law is defined, from the beginning, as the study not of the Constitution but of judicial review under the Constitution. In a sense, the rest of Constitutional law is a series of footnotes to Marbury. Once the key question - who decides? -- is behind us, the rest of the course can be devoted to such interesting questions as "What does the Supreme Court think about freedom of speech?" "What does the Court think are proper procedures for welfare administration?" What is the Court's opinion of term limits?" and the like. Students learn to parse cryptic opinions for clues about what the justices are thinking, to use doctrinal language out of Supreme Court opinions rather than the language of the Constitution, to manipulate multipart tests, and to speculate about the authority of plurality opinions and concurrences -- al this in place of serious reflection on the words of the Constitution, its historical context, or the philosophy of government that it reflects. Much constitutional doctrine has no actual content, but simply tells us how or little regard the Court will have for the decisions of the representatives of the people: strict scrutiny, rational basis, and the like.

..... [Then most standard constitutional history courses] get to Cooper v. Aaron, in which the notion comes forth that the opinions of the Supreme Court are actually on a level with the Constitution itself. The Court's opinions, the Court opines, are not just interpretations of the law, but are themselves the supreme law of the land. So officials around the country who swear an oath to support and defend the Constitution of the United States are in fact swearing to uphold and defend the Supreme Court decisions, and not just the Constitution…..

It is no wonder that Supreme Court decisions declaring for themselves the extraordinary power to dictate to the rest of us with respect to such important subjects are treated as legitimate. That seems to be the way it has always been -- if history is studied in this way.

For observing that Marbury doesn't stand for judicial supremacy but that the Court asserts it inCooper v. Aaron, does Millhiser think that Professor McConnell opposes desegregation? Does Millhiser think that Professor Wolfe opposes desegregation? After all, it is Professor Wolfe who presumably edited McConnell's chapter in the book.

I hope the point is clearly made that observing that judicial supremacy is a judge made creation of the Warren-era Supreme Court in its 1958 decision of Cooper v. Aaron doesn't make one a segregationist.

Next, Millhiser is troubled that Gingrich would be troubled by the Ninth Circuit Court of Appeal's 2002 decision that held that the 1954 Congressional statute that added the words "under God " to the Pledge of Allegiance violated the Establishment Clause and was therefore unconstitutional. The effect of that decision, if upheld by the Supreme Court, would mean that public school students would be blocked from reciting the Pledge of Allegiance in the classroom.

Millhiser is also troubled that Gingrich described the Ninth Circuit's arrogance of power in the 2002 pledge decision and linked it to the example of the Supreme Court's arrogance of power in its 1857 decision in Dred Scott, in which 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. That Gingrich would cite both decisions in his criticism of judicial supremacy amounts to, in Millhiser's words, "belittle[ing] slavery".

Does Millhiser mean to suggest that Dred Scott offers the only example in which the Supreme Court overstepped its bounds and therefore it is illegitimate to call out the excesses of judicial power in any other circumstance? Gingrich disagrees and is willing to explicitly connect instances when the judicial branch acts outside the scope of the Constitution, and when one or more of the political branches has acted to check and balance the judicial branch as a result. That's not a commentary focused on the evils of slavery; it's a commentary focused on the problems associated with unchecked judicial power and how to correct it.

Consider Dred Scott and the Ninth Circuit pledge decision and how the political branches reacted.

As outlined in the NEWT 2012 campaign position paper that Millhiser references in his posting, President Lincoln believed Dred Scott was an erroneous interpretation of the Constitution and acted in accordance with his own understanding of the Constitution, which he had also sworn to uphold and defend. 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."

Millhiser doesn't treat any of this history of President Lincoln and Dred Scott in his postings critiquing Gingrich's speech and campaign paper. Why not? Would Millhiser have had Lincoln act otherwise?

The idea of judicial supremacy that Gingrich is rejecting today is the same idea of judicial supremacy that Abraham Lincoln rejected in his opposition to the extension of slavery mandated byDred Scott.

Coming to the Ninth Circuit decision, examine what Congress did in response. Congress explicitly reaffirmed the words "under God" in the Pledge -- and the 1954 law that inserted them -- by a vote of 99-0 in the Senate and 401-5 in the House, which President Bush signed. Those votes reflect an overwhelming expression of the national will expressed in the rule of law. Yet, notwithstanding this vote, when the Supreme Court got the case, it did not unanimously reverse the Ninth Circuit, as Millhiser states, but instead dismissed the case on procedural grounds. Only three justices were willing to uphold the constitutionality of the words "under God" in the Pledge, while five justices hid behind procedural grounds. So if the plaintiff had had standing, there may have been a 5-4 majority for declaring "under God" unconstitutional.

Later in his series of posts, Millhiser condemns Gingrich for suggesting that there could be instances in which a President could refuse to comply with court decisions that he doesn't like. Millhiser compares this Gingrich position to the position of leaders in state government who refused to follow the Court opinions on desegregation.

There are two big problems with Millhiser's condemnation. First, Gingrich has never said that state governments can ignore the rulings of the Court. In contrast, Gingrich is describing the relationship among the three branches of the federal government and their respective duties to uphold the Constitution.

Second, Gingrich is not saying that a President and Congress can simply ignore court rulings they don't like. Instead, Gingrich is making the point 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 decide on such exceedingly rare occasion to take corrective action supported by the Constitution, 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.

Lincoln response to Dred Scott is one illustration of an Executive Branch response to a Court decision that it strongly believed violated the Constitution.

For Millhiser, it amounts to "government by intimidation" for Gingrich to point out these constitutional powers that the political branches can use to check and balance the judicial branch.

But they are all firmly grounded in the Constitution. For example, 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."

How can it be seen as "government by intimidation" if Gingrich is pointing out the constitutional legitimacy of exercising certain constitutional powers in certain well-defined and limited circumstances?

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.

Does Millhiser believe that the Supreme Court is the only branch incapable of acting unconstitutionally? And does Millhiser believe that passing a constitutional amendment is the only Constitutional remedy that the political branches have for responding to decisions of the Supreme Court? Lincoln didn't think so.

The principal concern with the views of Millhiser (and his support of judicial supremacy) is that he treats federal judges and federal courts generally as incapable of error and immune to human nature's propensity to err when endowed with unchecked power. He seems 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.

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