Gingrich Campaign Press Release - Newt 2012 Responds to ABA Journal Story on Judicial Supremacy

In her story about Newt Gingrich's rejection of judicial supremacy, ABA journalist Debra Cassens-Weiss misquotes Gingrich by omitting four words from Gingrich's speech in her quotation, thereby materially misrepresenting what he said and leaving the unfortunate impression among ABA readers that Gingrich believes that a president can simply disregard any Supreme Court decision that he doesn't like. That's not what Gingrich said and it is not what Gingrich believes.

Hopefully, the ABA Journal will issue a correction of the story. The misquotation is highlighted below.

It would also be appropriate for the ABA Journal to provide a more in depth treatment of Gingrich's view of the federal judiciary since his views are more substantial and far more constitutionally and historically grounded than the ABA journal's three paragraph treatment would suggest.

In a speech last week and in a 54 page position paper put out by his campaign the same day, Gingrich argues that on the rare occasions the Supreme Court actually gets it wrong constitutionally, the executive and legislative branches have constitutional powers to check and balance the Court, including the Executive Branch power to ignore decisions of the Supreme Court that it finds unconstitutional. This is a far cry from a president simply disregarding Supreme Court decisions he doesn't like.

In contrast, Gingrich is describing a situation in which there would be a serious constitutional dispute among separate and equal branches of government. It is grounded in the constitutional and historic understanding that the Supreme Court does not enjoy interpretative supremacy over the other two branches of the federal government when it comes to interpreting the Constitution. And Gingrich's view rejects the modern theory the Court asserted in Cooper v. Aaron that it has the power of judicial interpretive supremacy over the two political branches. Moreover, Gingrich supports the constitutional and historical view that the Executive and Legislative branches each have an independent responsibility to interpret the Constitution, and when they believe the Court has engaged in a serious constitutional error, to take actions to check and balance the Court.

Gingrich's view is substantially similar to the view that President Abraham Lincoln espoused in his rejection of judicial supremacy in response to the Supreme Court's decision in Dred Scott v. Sanford.Dred Scott was the 1857 Supreme Court decision 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.

Lincoln explained his rejection of judicial supremacy in his First Inaugural Address:

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.

As outlined in the NEWT 2012 campaign position paper, President Lincoln not only believed Dred Scott was an erroneous interpretation of the Constitution by the Supreme Court, he acted in accordance with what he believed to be a correct understanding of the Constitution, which he had also been 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.

Lincoln was not the only President concerned that the idea that Supreme Court decisions should irrevocably fix the policy of the whole federal government on vital questions affecting the whole of the people would mean the end of self-government. For example, 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."

Andew Cohen of The Atlantic and Ian Millhiser of Think Progress have both written critiques of Gingrich's rejection of judicial supremacy. You can read NEWT 2012's responses to those pieces here and here.

Now, let's come to the misquotation by the ABA Journal. Here is what Gingrich actually said in his speech: "I would instruct the national security officials in a Gingrich administration to ignore THE RECENT DECISIONS OF the Supreme Court on national security matters."

The ABA Journal's Ms. Cassens-Weiss's misquotes Speaker Gingrich, omitting the four words "the recent decisions of", leaving the impression that Gingrich has an open-ended policy of just ignoring the Courts based on no reason at all. Not true. Gingrich has specific concerns with a series of specific decisions of the Supreme Court addressing national security matters that he believes constitutes serious constitutional error. Regrettably, the misquotation leads the reader into serious error about the issues raised by Speaker Gingrich.

Readers can view the speech for themselves on C-Span. The passage in question occurs at 16:35.

If the ABA had wanted to provide more context for the quotation they used, it could also have quoted this passage from the same Gingrich speech:

And the question of national security — in the last few years, the courts, I think, have become virtually out of touch with reality. The idea that the courts are now going to take on responsibility for defending the United States is a clear and fundamental violation of the Constitution and a fundamental violation of the executive branch's power, and the Congress should pass a law repudiating every interference of the courts in national security issues and returning them to the Congress and the president, where they rightly belong.

And for further reference, the ABA Journal could have considered what the Newt 2012 position papers says about these recent Supreme Court decisions on national security matters:

Cases Affecting the Executive Branch's Foreign Policy and National Security Powers

In a series of rulings issued after 9/11 – Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the Supreme Court exceeded its proper judicial role and interfered with the executive branch's constitutional powers in foreign policy, including the commander in chief's wartime powers. In addition, in Boumediene, the Supreme Court ignored the constitutional limits placed by Congress on its jurisdiction over aliens held by the United States as enemy combatants at Guantanamo Bay, holding such limits invalid and effectively declaring that the Court would be the final arbiter (not Congress) of federal court jurisdiction.

The Supreme Court behaved irresponsibly in this set of cases and thereby sent very powerful signals to the entire federal judiciary that judges can rule with impunity according to their own standards of decision-making, not constitutional standards. If federal judges can act without regard for the Constitution in matters as serious and weighty as the conduct of war and the safety of the nation and its men and women in uniform, it will be much easier for federal judges to act just as casually and more so in constitutional matters of lesser concern.

The Supreme Court used to understand that the very nature of executive decision making in foreign policy and military affairs – especially the conduct of war and the gathering of intelligence – is political, not judicial. Courts lack the competence to make such decisions. Moreover, our constitutional system was designed for the political branches to act together in these areas, making the political branches accountable to the people who are directly affected by their judgments in matters of war. Unfortunately, the Supreme Court has forgotten these most basic of constitutional principles.

Therefore, Gingrich administration policy vis-à-vis the judicial branch concerning national security rulings will be made very clear. The political branches were given power over defense and the conduct of war. The federal courts were given no such power. Should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored. The President is accountable to the whole of the people, and can be held accountable at the next election. Federal judges do not have such accountability. Moreover, if the Congress believes that a President's explanations for ignoring such decisions of the Supreme Court are unacceptable, Congress always has the power of impeachment.

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