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Newt and Judges

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Newt Gingrich has been raising a lot of hackles lately with his statements about judges and the separation of powers.  In typical Gingrich fashion, he begins with a genuine problem, throws in some real history, and then proceeds to run off the rails.

Joe Palazzolo at WSJ Law Blog has this post, with some excerpts from the last Republican debate.

The basic complaint about "activist judges" is quite valid.  Federal judges generally, and the Supreme Court in particular, have often misused the power of judicial review to strike down statutes they disagree with as a matter of policy, even though neither the text nor the history of the Constitution justifies the decision.  For example, the notion that the Constitution forbids the people of the states from deciding, on a uniform statewide basis, what factors will be considered mitigating in capital cases is utterly unjustifiable as a matter of constitutional law, whatever one thinks of the policy.

It is true that the elected branches are often too deferential to the judiciary.  It is true that Jefferson, Jackson, Lincoln, and FDR had major disputes with the Supreme Court.  Within constitutional limits, the President and Congress should give more attention to reining in overreaching courts.
Jefferson did indeed abolish some federal courts, effectively ousting otherwise life-tenured judges.  That is a drastic measure, which should only be considered in extreme circumstances.  At present, only the Ninth Circuit is even close to the level of chronic usurpation to warrant even considering such a measure.

Gingrich notes that Lincoln in his first inaugural address challenged the idea that we must accept the Supreme Court's interpretation of the Constitution as conclusive for all purposes.  He did indeed.

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 all 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 over-ruled, 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. Nor is there, in this view, any assault upon the court, or the judges. It is a duty, from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs, if others seek to turn their decisions to political purposes.

But Lincoln's conflict with the judiciary, and particularly with Chief Justice Roger Taney, went beyond speech-making.  Taney sent a writ of habeas corpus out to Fort McHenry (of Star-Spangled Banner fame) to free pro-confederate activist John Merryman.  The commanding general refused, and Lincoln backed him up.  This is the most dramatic example in American history of a President defying judicial authority.

FDR was prepared to do the same, even more dramatically.  In the case of the German U-boat saboteurs, as the Supreme Court considered their habeas petitions in Ex parte Quirin, FDR quietly let it be known that they were going to be shot regardless.  The Court denied relief, and they were shot.

Both of these examples, however, occurred at times of extreme national peril.  The very survival of the nation was in doubt.  Such drastic actions would not be justified or tolerated in less extreme circumstances.  When President Nixon was ordered to turn over the Watergate tapes, he initially refused but ultimately folded.  President Clinton similarly yielded in the Paula Jones case

Could a President refuse to obey a judicial order today and get away with it?  Maybe, in the case of extreme national danger such as Lincoln and FDR faced.  Let's hope we never find out.  In lesser matters, no, the political price would be too high.

But today on Face the Nation, Gingrich talked about issuing subpoenas to judges to answer for their decisions and sending the marshal to bring them in if necessary.  Now that is definitely off the rails.  Back in history, Andrew Jackson actually did arrest a judge for his decision, not as President but as military commander in New Orleans.  The judge issued a writ of habeas corpus for a military prisoner.  Jackson not only did not release the prisoner, but he had the judge arrested.  This is not an example to be emulated.

It is good that a major candidate is willing to address the issues of judicial activism and explore ideas on what to do about it.  I just wish he weren't such a loose cannon.

1 Comment

If Michael Mukasey and Alberto Gonzales think Newt Gingrich's views on the courts are wackadoo, that's good enough for me:


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