Gingrich’s Attack on the Judiciary Has Precedent

All too seldom do we get an unobstructed glimpse through a fog of obfuscation, hand waving and denial and into the racist core of modern conservatism.  It’s a view of and America grounded in slavery, Jim Crow and the segregated South.  An America without regard to justice, fairness, equality or opportunity-for-all.  America can be an ugly, brutish nation if we don’t stand vigil over the darker instincts.  Some, though, embrace those instincts, they feed off them and thrive in their embrace.  Newt Gingrich is just such an American.

Newt Gingrich renewed his attack on America’s judiciary last night at the Republican Debate.  This attack takes the form that the judicial branch has been overreaching their authority for years and is, in effect, “legislating from the bench.”  This invented attack on the judicial branch has a very 20th century taint about it.  A taint which attached in the wake of the Supreme Court’s 1958 Cooper v Aaron decision.  More on this below.  The judicial branch is a favorite whipping boy of the right because it’s not something that is supposed to be influenced by politics.  It’s supposed to sit above the fray and weigh in when questions of constitutionality of laws are at stake.

Let’s pause and reflect on the brilliance of the tripartite system devised by the men who conjured our system out of the turmoil of the American Revolution.  Our Constitution defines three branches of government: Executive, Legislative and Judicial, each with a unique function in a system of checks and balances.  The two elected branches, executive and legislative, were empowered to conduct the day to day business of government subject to the ebb and flow of politics.  But the judicial branch was meant to be different.  The judicial branch was intended to take the long view of our Republic.  Judges were empowered to ensure constitutional continuity through the years and to ensure that continuity despite the ebb and flow of the political system.  Judges were installed to ensure that we never lost sight of the long-term health of the nation.  In fact, many of the faults that conservatives find in the judicial branch are the very reason the judicial branch is structured the way it is.  It is a check against they tyranny of populism, the kind of populism we see in the Republican Party today.

So what about Gingrich?  Well, he starts from the premise that the judiciary is already politicized and overreaching.  He starts from the premise that it is already committed to some program of tyranny.  He believes the bench has become dominated by a philosophy he and other reactionary conservatives call “judicial supremacy.”  He has an entire position paper on the subject.  Gingrich writes,

Judicial supremacy operates on the assumption that a Supreme Court decision on constitutional interpretation is final for all branches of government unless the Court reverses itself in the future, or a constitutional amendment is passed. 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.

Did you catch the logical fallacy?

The result is that courts have become more assertive and politicized to the point of an abuse of power.

That’s an assertion, not a conclusion drawn from facts.  It’s an opinion, nothing more.  Not only that, it does not follow logically from the preceding sentence.  He then leaps to a conclusion bereft of any facts whatsoever

the public has increasingly come to view them as an usurpative device for unelected rulers

Really? Where did they say that?  Do you have a scientific poll validating that unfounded assertion?

Remember, Newt Gingrich is supposed to be the “smart one.”

Furthermore, he claims that the doctrine of judicial supremacy is a recent phenomenon which stems from a single recent case.  It is a phenomenon grounded in the evils of “liberalism.”  Because when liberals can’t get what they want at the ballot box, they… do something… to convince the judges to… agree with them?  I don’t know, it makes no sense to me.  The whole thing sounds like a childish tantrum that mommy and daddy (the judges) won’t let me (the legislature) do what I want to do.

The authors reserve their strongest vitriol for the 1958 Cooper v. Aaron decision.  This decision held that state’s attempts to “nullify” Federal law with state law were unconstitutional.  If you ever wondered where the whole “state’s rights” meme comes from, this is the decision, in conjunction with Brown v Board of Education which set it in motion.

While you may not know this case by name, this is the famous Little Rock School desegregation case (The Little Rock Nine).  That decision, to conservatives, constituted the most egregious form of judicial activism.  It was Judicial Supremacy of the worst kind.

Here is the core of the decision:

Held: The judgment of the Court of Appeals is affirmed, and the orders of the District Court enforcing petitioners’ plan of desegregation are reinstated, effective immediately. Pp. 358 U. S. 4-20.

1. This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution in Brown v. Board of Education, 347 U. S. 483. P. 358 U. S. 4.

2. This Court rejects the contention that it should uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify its holding in the Brown case have been further challenged and tested in the courts. P. 358 U. S. 4.

3. In many locations, obedience to the duty of desegregation will require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes at particular schools. P. 358 U. S. 7.

4. If, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), a District Court concludes that justification exists for not requiring the present nonsegregated admission of all qualified Negro children to public schools, it should scrutinize the program of the school authorities to make sure that they have developed arrangements pointed toward the earliest practicable completion of desegregation, and have taken appropriate steps to put their program into effective operation. P. 358 U. S. 7.

5. The petitioners stand in this litigation as the agents of the State, and they cannot assert their good faith as an excuse for delay in implementing the respondents’ constitutional rights when vindication of those rights has been rendered difficult or impossible by the actions of other state officials. Pp. 358 U. S. 15-16.

6. The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature, and law and order are not here to be preserved by depriving the Negro children of their constitutional rights. P. 358 U. S. 16.

7. The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Pp. 358 U. S. 16-17.

8. The interpretation of the Fourteenth Amendment enunciated by this Court in theBrown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” P. 358 U. S. 18.

9. No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it. P. 358 U. S. 18.

10. State support of segregated schools through any arrangement, management, funds or property cannot be squared with the command of the Fourteenth Amendment that no State shall deny to any person within its jurisdiction the equal protection of the laws. P. 358 U. S. 19.

257 F. 2d 33, affirmed.

Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.

It was a unanimous decision by the Warren Court.  The reaction from the right was swift and vitriolic and an entire cottage industry of “state’s rights” was born out of the decision.  Tellingly, the terms “Little Rock” and “desegregation” appear nowhere in the Gingrich position paper.

The courts haven’t become more radical, Mr. Gingrich, you and your party have.

It’s odd that the authors never engage with the case most Constitutional scholars regard as controlling in the history of Constitutional interpretation and the role of the judiciary in American Constitutional law:  Marbury v Madison (1803).  While the details of the case are not relevant to the review here, the finding is.

  1. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
  2. No. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution.The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

Marbury v Madison was the landmark case which established the rules governing the judicial branch’s “check” on both legislative and executive branch overreach.  Historically, this was not an overly controversial decision, it just happens to be the first one where the issue was brought before the Supreme Court.

But the authors of the Gingrich position paper barely mention it.  In the 53 page treatise on “Judicial Supremacy” it is mentioned only three times, two of which are in citations from other sources.  In their effort to frame the judicial review process as a recent aberration, they’ve overlooked the real historical value of this critical systemic check.

The authors amusingly cite Madison in the Federalist papers as objecting to judicial review of legislative and executive decisions.  Madison, the subject of the Marbury v Madison decision.  No, no conflict of interest there.  As per their standard modus operandi, conservatives are confusing opinion with evidence.  What Madison writes in the Federalist Papers is interesting from an historical perspective, but has no real bearing on the course of judicial decision making through the years except indirectly.

The authors also attempt to cite past behavior by Presidents to excuse future misdeeds by a a Gingrich Presidency.  Looking to Lincoln’s response to the Dred Scott case, they say

Lincoln also signed legislation that placed restrictions on slavery in the federal territories, a position directly at odds with Dred Scott.

Notice the slight-0f-hand?  Judicial review can only happen after a law is signed, never before.  So Lincoln signing a law “directly at odds with Dred Scott is irrelevant.  What is relevant is the judicial review process after the law is enacted.  It’s this kind of disengenuous argument which permeates this position paper.

The inconvienent truth is that this call-to-arms against “Judicial Supremacy” is a fiction.  The role of the judiciary has always been to establish a check on the executive and legislative branches.  If Gingrich wants to blame someone for “Judicial Supremacy,” he needs to go back to 1803 and blame Chief Justice John Marshall who wrote in the Marbury v Madison decision

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

It’s what our judges are for.

At the end of the day, all the brouhaha over “Judicial Supremacy” boils down to the same racist arguments the state’s rights crowd have been using for years.  It’s just prettied up and wrapped in pseudo-Constitutional scholarship justified with citations to other like-minded racist tools.  But it’s a scholarship of the most disingenuous sort.  It’s scholarship that starts from a false premise and then builds an edifice on top.  It looks impressive, but fortunately, it’s easy to knock over.

Honestly, when Michele Bachmann is on your side, you need to reconsider your position.

BACHMANN: I hold a biblical view of law, and if you look at the original Constitution and the founding documents of our country, it was clear that the Founders wanted to separate power, they wanted to separate the presidency from the Supreme Court and from the Congress, because they thought that the Congress should be the most powerful of all the people’s voices because the people would have the ability to change out the members of the House every two years, originally the state legislatures chose the senators and they were to have the states’ interests in mind, and then the president was meant to execute the laws that Congress put into place. And Congress— The courts had really a relatively minor function, it was to take current fact and apply it to the law that Congress had passed. And so it was really a beautiful system that set up but it’s been distorted since then, and that’s what we need to do, is get back to the original view of the Founders because it worked beautifully.

When a political party, any political party of any stripe, seeks to undermine the judicial branch of government, nothing good can come of it.

5 comments to Gingrich’s Attack on the Judiciary Has Precedent

  • Palli

    First of all Republicans: Vote on the Appeals Court Judgeships that are waiting for votes!

       0 likes

  • William Bell (wumhenry)

    Aaron v. Cooper goes way beyond Marbury v. Madison. The Court held in Marbury that an act of Congress that is outside the limits of the powers delegated to it by the U.S. Constitution is legally null and void and judges should therefore refuse to uphold it. The decision in Marbury neither says nor implies that a state’s executive officials are obligated to perform their official duties consistently with the Supreme Court’s opinion on a Constitutional question in a case that neither they nor their state was a party to.

    In Aaron v. Cooper, the Court held that Arkansas officials were bound by the Supreme Court’s constitutional ruling in a case, Brown v. Board of Education of Topeka, Kansas, that Arkansas was not a party to. The Court declared that its prior stated *opinion* on the constitutional question in that case was “the supreme law of the land.” In effect, the Court was ascribing infallibility to itself on matters of Constitutional interpretation — which was passing strange, since the constitutional ruling in Brown was contrary to a prior Supreme-Court opinion of some sixty years’ standing. Stigmatizing any criticism of Aaron v. Cooper as racist contributes nothing to civic enlightenment.

       0 likes

    • Phil Scarr

      Thank you for the thoughtful reply! I appreciate you taking the time to respond.

      I respect your opinions but I disagree with you on several points. I am not a lawyer but have read extensively on this and other constitutional cases.

      Aaron v. Cooper goes way beyond Marbury v. Madison

      That’s your opinion, I disagree. Both cases provide a foundation to for the court to assert its role in the tripartite system of government envisioned by the founders. The role of the judiciary as arbiter of Constitutional law extends back into the mists of English Common Law.

      The decision in Marbury neither says nor implies that a state’s executive officials are obligated to perform their official duties consistently with the Supreme Court’s opinion on a Constitutional question in a case that neither they nor their state was a party to.

      What Marbury asserts is clear: The Supreme Court has the right to decide what is Constitutional and what is not. The Constitution is the foundation for all law. The judiciary applies the laws that the legislature and executive agree upon.

      Is it your assertion that state governments are somehow above or beyond the law? I find that argument insupportable from the precedents and case histories of either the US or English Common Law. State governments are bound by Federal law where applicable. And it is the role of the SCOTUS to determine when and where it is applicable.

      In Aaron v. Cooper, the Court held that Arkansas officials were bound by the Supreme Court’s constitutional ruling in a case, Brown v. Board of Education of Topeka, Kansas, that Arkansas was not a party to.

      Whether or not Arkansas officials were a party to the BvBoA case is not relevant. They are bound by the precedent as are all state governments.

      In effect, the Court was ascribing infallibility to itself on matters of Constitutional interpretation

      is contrary to your next statement

      the constitutional ruling in Brown was contrary to a prior Supreme-Court opinion of some sixty years’ standing.

      Clearly, from your own post, the Supreme Court is not “infallible.” We’ve seen this on a number of occasions where prior rulings were overturned. That does not make the SCOTUS wrong, it merely makes them human.

      Stigmatizing any criticism of Aaron v. Cooper as racist contributes nothing to civic enlightenment.

      I’m sorry if that offends, but the writing is on the wall on this one. In both BvBoA and AvC the cases were dealing with racist southern state governments attempting to circumvent federal law to prevent integration. That is the very soul of racism in America. To deny that, to attempt to sterilize the discussion as some kind of abstract theological debate about angels dancing on pinheads is to miss the forrest for the trees.

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    • Sam

      “In effect, the Court was ascribing infallibility to itself on matters of Constitutional interpretation — which was passing strange, since the constitutional ruling in Brown was contrary to a prior Supreme-Court opinion of some sixty years’ standing.”
      The Court does not believe that it is infallible but it does have the principle of “stare decisis:” it will “let the decision stand.” It is important to have settled law. But settled does not mean permanent or unchanging.

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  • Phil Scarr

    Sometimes I wish I could actually, you know, write. Like this guy….

    The independence of the Judicial Branch of the US Government exists for a number of very good reasons – chief among them is preventing people like Donald Wildmon and his band of yellow-eyed fanatics from turning the United States into Jesusland. These people relentlessly condemn Islam as violent and evil, and Mormons as a cult, and atheists as immoral, but don’t you think for one damned minute that people who believe that Constitutional protections only apply to Christians wouldn’t be out lopping off heads, burning non-believers at the stake, and running the Holy Inquisition Sausage Grinder at full power if they could get away with it. It sure isn’t God who keeps them from doing it, it’s the Constitution of the United States and the power of independent Judges.

    The independence of the Judiciary is the primary thing holding them at bay. No wonder they want destroy it.

    I’ve heard it said that that Newt Gingrich is what stupid people think a smart person looks like.

       0 likes

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