Newt Gingrich’s Assault On The Judiciary

Newt Gingirch ups the ante in his rhetorical assault on judicial independence.

Over the past few days, Newt Gingrich has stepped up his rhetoric against the Federal Judiciary, exemplified by his comments during Thursday’s debate. Over the weekend, for example, Gingrich suggested in a conference call with reporters that were he President he would feel free to ignore Supreme Court rulings he disagreed with:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings.

“I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of “judicial supremacy” and restrain judges to a more limited role in American government. “The courts have become grotesquely dictatorial and far too powerful,” he said in Thursday’s Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

Relying on those precedents, Gingrich said that if he were in the White House, he would not feel compelled to always follow the Supreme Court’s decisions on constitutional questions. As an example, he cited the court’s 5-4 decision in 2008 that prisoners held by the U.S. at Guantanamo Bay, Cuba, had a right to challenge their detention before a judge.

“That was clearly an overreach by the court,” Gingrich said Saturday. The president as commander in chief has the power to control prisoners during wartime, making the court’s decision “null and void,” he said.

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in “extraordinary” situations.

Then today, on Face The Nation Gingrich suggested that Congress has the authority to summon Federal Judges to appear before it to justify their rulings, and even send law enforcement to arrest judges who don’t comply with any such summons:

GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.

Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.

When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.

“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”

Gingrich made his remarks during a Sunday appearance on CBS’s “Face the Nation” where he defended his position that the president has the power to eliminate federal courts to disempower judges who hand down decisions out of step with the rest of the nation.

Gingrich cited the 9th Circuit’s decision that reciting the Pledge of Allegiance in public schools is unconstitutional as an example of a decision drastically out of step with the values of the country.

Of course, Gingrich is largely mis-stating what happened in that case. In 2006, a group of parents had sued the Rio Linda, California School District alleging that the daily classroom recitation of Pledge of Allegience was an unconstitutional establishment of religion so long as it included the words “under god,” which had not been added to the Pledge until the 1950s. A Federal District Court agreed with the parents and issued an injunction barring the daily recitation of the Pledge, even if it was voluntary. In Newdow v. Rio Linda Union School District, an unpublished opinion of the 9th Circuit Court of Appeals overturned the District Court and ruled that the voluntary recitation of the Pledge is not unconstitutional. Now it is true, that in 2002 a different panel of the 9th Circuit Court of Appeals had declared the words “under god” unconstitutional, but that decision was ultimately overturned and the constitutionality of the Pledge was upheld. That is how the appeals process is supposed to work. Now, some might argue that the Constitutionality of the pledge is a silly issue to litigate, and the main Plaintiff in this case, Michael Newdow is something of an activist atheist with a reputation for filing suits like this (in 2009 he tried to enjoin Barack Obama from using “so help me God” in his Inaugural Oath, that suit was rejected).  Those are perhaps arguments worth considering, but once a lawsuit is filed the Courts must deal with it some fashion and the appeals process exists to make sure that complex legal issues get a full hearing. Using this one case as an example of what is typical in Federal Courts, though, is simply disingenuous.

Gingrich’s suggestion yesterday that he would feel free to ignore Supreme Court decisions that he disagrees with is particularly dangerous. When I wrote about this on Friday, I noted the examples from history that Gingrich typically cites when he talks about this issue. Each one of them, from Jackson ignoring the Court’s rulings on Indian removal, to Lincoln ignoring the court rulings on his blatantly unconstitutional suspension of the Writ Of Habeus Corpus, to FDR’s effort to strong-arm the Supreme Court with his court packing plan, involved instances where the Executive Branch was seeking to expand its own power by ignoring the rulings of a co-equal branch of the Federal Government. If Newt Gingrich thinks its okay for him to ignore a Supreme Court decision on same-sex marriage, then that also means that it would be okay for Barack Obama  to ignore the Supreme Court if it declares the PPACA unconstitutional next June. If Arizona can ignore the Supreme Court saying that its immigration law its unconstitutional, then California can ignore the Supreme Court saying that its decision not to enforce immigration laws.

Moreover, as a supposed historian, one would think that Gingrich would recognize the historical roots of his argument. It’s not unlike the doctrine of nullification that was widely popular in the Southern United States before the Civil War, and reasserted itself some 100 years later. After the Supreme Court issued its ruling in Brown v. Board of Education, most of the states in the Southern United States undertook efforts to evade having to comply with the ruling or ignore it all together. Prince Edward County, Virginia, for example, took the extreme step of closing all of its public schools rather than comply with court-ordered desegregation. In doing so, the country provided “tuition grants” to all students regardless of race, but none of the private schools in the county would admit African-American students. In 1964, the Supreme Court declared this policy unconstitutional. Other southern states asserted the discredited theory of interposition to argue that they had the authority to ignore the Court’s ruling in Brown, an argument which the Supreme Court rejected unanimously. In essence then, Newt Gingrich takes the same position on SCOTUS rulings he dislikes that southern segregationists did after Brown. They are as discredited now as they were then.

What’s most striking about Gingrich’s position on this issue, though, is the violence it does to the principle of Separation of Powers. Under our Constitution, the Executive. Legislative, and Judicial Branches are deemed co-equal within their own spheres of power. Gingrich, however, proposes ideas that would completely upend this system by drastically reducing judicial independence. Requiring Federal Judges to appear before Congress every time they issue a decision that some Committee Chairman decides they don’t would be an utter disaster. For one thing, it’s entirely likely that this Congressional power would quickly become subject to abuse as Congressmen and Senators use such hearings not only for political grandstanding but also to put pressure on judges to rule in a certain way in pending cases. Judges would quickly be faced with the dilemma of following the law as best they could and worrying about whether the ruling they issue means they end up on C-Span in three months time getting grilled by a Senator with dreams of running for President one day. It would be the death of judicial independence, and would be harm the rights of those seeking their day in Court who would find that there is an 800lb gorilla called the United States Congress looking over the Judge’s shoulder.

Another thought occurs, of course. If Gingrich believes that it would be proper for Congress to summon a Supreme Court Justice before it to explain themselves, then why wouldn’t it also be proper to summon the President himself before Congress to be questioned and forced to explain the basis for his decisions? What Gingrich is really talking about here is an idea that would set off a Constitutional crisis between the three branches of government.

Matt Lewis wondered on Twitter the other day if Gingrich’s verbal assault on the judiciary was “zany” or politically brilliant. As I’ve noted here today, and also on Friday, zany doesn’t even begin to describe the nature of Gingrich’s ideas on the judiciary, some of which seem to be borrowed from a Harry Turtledove alternative history novel. Dangerous is the word I would use. As for the political brilliance of it all, most people say the economy is all they care about it, and the more Newt talks, the more his poll numbers keep slipping. So brilliant? Not even close.

FILED UNDER: 2012 Election, Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.

Comments

  1. Eric Florack says:

    I’m not so sure.
    The left leaning judiciary, particularly the ninth circuit, has long been a target of conservatives.

    Yes, even on this web site.

    I suggest to you that at least among the rank and file GOP, Gingrich has more support in this than any worries about the “independence” of the judiciary.

    If we identify a too powerful judiciary as a major problem, (and I think it correct we do) is it not correct to attempt, or at least discuss, incidental to an election process, a solution to the problem?

    And again as always with Gingrich comes the question …. are we talking about actual proposals, here, or are we talking about a general line of thought?

  2. ponce says:

    Trying to appeal to the extreme right wing fringe of the Republican Party base is the final stage of the anti-Romney candidate’s arc.

  3. steve says:

    I am pretty sure this is what the Founders intended. The clear and plain meaning of the text of the Constitution suggests that the President should ignore the rulings of the courts. As we alternate between GOP and Democratic Presidents, each side can take turns nullifying the court rulings with which it does not agree.

    Steve

  4. @steve:

    I must honestly admit to being confused as to which version of the Constitution you are reading.

  5. McKeever says:

    While I disagree with Newt’s statements and positions concerning the courts, I do have a big problem with judges being appointed, especially for life.

  6. Tsar Nicholas II says:

    Apparently Gingrich isn’t bothering to wait until next year to try to help re-elect Obama.

  7. anjin-san says:

    the final stage of the anti-Romney candidate’s arc.

    Newt is already heading south. Fringe right candidates don’t have a long shelf life once the national spotlight hits them.

    Of course Newt is not really far right or conservative. Just an old whore who, like any whore, will pretend to be anything you want him to be for money.

  8. @McKeever:

    I prefer appointed judges to elected judges for many reasons, and life tenure is in Constitution so you’ll need to amend the Constitution for that one.

  9. MM says:

    @McKeever: Why on either? Do you really want judges running ads (which happens in a lot of municipalities where judges are elected)?

  10. @MM:

    Agreed. The appointments process isn’t perfect, but the idea of judges, especially appellate-level judges, running for election is particularly troublesome

  11. Hey Norm says:

    Newt is talking directly to fools like Eric, Drew, Jan, G.A., Bandit, etc. Judging by Eric’s comment, it’s working quite well. Watch for the polling bump.

  12. Eric Florack says:

    @Hey Norm: I can’t help but wonder if your support for operations like the night circus, would be quite a stout were they to be as reliably conservative in their rulings as they are now reliably whack-job Liberal.

    somehow, I tend to doubt it.

  13. Eric Florack says:

    @steve:
    Agreed.

    After all, swearing to uphold the constitution, requires that we each individually have an understanding of it. Here’s a question that most in here dare not answer;

    Is it possible for the Supreme Court to make an unconstitutional ruling?
    I daresay history shows that it can, and does.
    Would it thereby have been constitutional for the president to ignore and defy the court as regards Dred Scott for example?

  14. Teebob2000 says:

    @Doug Mataconis: I’m pretty sure it was said tongue-in-cheek.

  15. DRF says:

    Isn’t it absurd that a serious candidate for the Presidency–and one who fancies himself a historian–would need to be schooled on separation of powers and the critical importance of an independent judiciary.

    The dangerous nonsense spouted by Gingrich is appalling–his Ph.D should be revoked. implementing his suggestions would be the first step to the destruction of the Constitution as a brake on governmental power and would ultimately lead to the sort of tyranny that the Founding Fathers fought against.

    (By the way, suggesting that Congress should call a Federal judge before it to “explain” his or her decision is ridiculous; most decisions–and certainly those with Constitutional significance–are accompanied by written opinions explaining the reasoning and the judicial, statutory, Constitutional or common law precedents. In the extremely unlikely event that a Congressional committee were to subpoena a judge and that judge were to comply and appear, I would guess that his or her position would be that the written opinion speaks for itself and would decline to answer any other questions.)

  16. Out of curiosity, what’s to stop the Supreme Court from dragging a bill’s sponsor before the court, or even the President, to explain a decision or to acquire knowledge about statutory intent?

  17. @Timothy Watson:

    As an appellate Court the Supreme Court does not take evidence.

  18. ponce says:

    Newt is talking directly to fools like Eric, Drew, Jan, G.A., Bandit, etc. Judging by Eric’s comment, it’s working quite well. Watch for the polling bump.

    I doubt Newt’s insanity will help him in the polls.

    Humans crave adjudication.

    One of the first things successful rebel groups do when they take over an area is set up courts and wait for the peasants to come streaming in with disputes they want deciding by some authority figure (see: the Taliban, Mexican drug cartels).

  19. G.A.Phillips says:

    Newt is talking directly to fools like Eric, Drew, Jan, G.A., Bandit, etc. Judging by Eric’s comment, it’s working quite well. Watch for the polling bump.

    I can not be brainwashed, Or hypnotized….. plus, I don’t even like the dude. My guy was politically assassinated by Axelrod. I assume.

    As for being a fool, I have it on good authority that we are all fools…I think some have just been born with more talent and then some of us enjoy doing it too.

    I put up a peace offering and another call for civility here, and added a call for understanding, but you must have missed it. It was in the post about the fishermen.

  20. Liberty60 says:

    @Eric Florack:

    After all, swearing to uphold the constitution, requires that we each individually have an understanding of it.

    Brilliant analysis!

    The Consitution is not a living document, interpreted by successive generations of Supreme Court justice;

    No, it is a personal document, interpreted by 300 million American as we each see fit.

    For example, President Obama decides that Supreme Court rulings upholding the 2nd Amendment are overly broad, so he ignores them and confiscates all guns;

    The Berkely City Council decides that recent rulings on the establishment clause are dangerously narrow and unconsitutional, so they establish the official City Religion of Goddess Gaia worship.

    Enough with those activist judges! We all know what the Consitution says! You can even Google it!

  21. Gustopher says:

    Can’t Newt keep him mouth shut for one measely month? Two at tops?

    The man is an idiot who has radical views and no understanding of the constitution or history. Speaking only hurts him.

  22. PD Shaw says:

    President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens

    Lincoln stated that that part of the decision was dictum. (Having decided that the court lacked jurisdiction to hear the case, Taney had gone on to hear the case and make rulings on it anyway) Lincoln would also point out that the decision was severely divided (there were nine opinions) and that the conclusion, that the right to own slaves was “expressly” affirmed in the Constitution was ridiculous.

    If they had only pledged their judicial opinion that such right is affirmed in the instrument by implication, it would be open to others to show that neither the word “slave” nor “slavery” is to be found in the Constitution, nor the word “property” even, in any connection with language alluding to the things slave, or slavery; and that wherever in that instrument the slave is alluded to, he is called a “person;” – and wherever his master’s legal right in relation to him is alluded to, it is spoken of as “service or labor which may be due,” – as a debt payable in service or labor. . . .

    When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

    I think politicians should ridicule the courts, the court should risk their legitimacy in striking down democratic laws, and the Republic will not fail for allowing so. A little humor helps.

  23. Ernieyeball says:

    Someone asked: “Is it possible for the Supreme Court to make an unconstitutional ruling?”

    When the US Supreme Court rejected the doctrine of “separate but equal” in the decision of Brown v The Board of Education was it not stating that the earlier Plessy v Ferguson decision that established “separate but equal” was an unconstitutional ruling by…the US Supreme Court???

  24. Chip says:

    “In essence then, Newt Gingrich takes the same position on SCOTUS rulings he dislikes that southern segregationists did after Brown. They are as discredited now as they were then.”

    This annoys me. So because racists were able to read the constitution we should abolish the constitution? There is nothing discredited about the idea that the constitution is the supreme law of the land and that it means what is written in it. Just because someone belongs to a reviled group doesn’t mean judges have the right to be dictators. Judges do not have the right to abrogate legitimate, constitutional laws they don’t like–even if they are racist. No doubt you also believe that a constitutional amendment legitimately enacted can be declared unconstitutional if a judge declares it homophobic. A constitutional amendment unconstitutional…

    No, we can’t have self government with a republican constitution… we need an oligarchy to keep us children in line, or who knows what horrors we’ll unleash… like having an invocation and benediction at a high school graduation… the horror!

  25. michael reynolds says:

    So this is the new more disciplined Newt.

    The GOP is down to Mitt Romney: the rich lay-off specialist who will say anything to pander to the idiot fringe. It’s really rather perfect, isn’t it?

    How anyone can call himself a Republican and not cringe in humiliation is beyond me.

  26. Anton Szandor LaVey says:

    @Chip: “…like having an invocation and benediction at a high school graduation…”

    I am sure you will let me write and give those prayers. I will be glad to fulfill your horrors.

  27. Dave Wyman says:

    I had a pleasant bike ride today with a federal judge, appointed by Pres. Clinton. We had a discussion about this issue.

    I’m incredibly annoyed with many the decisions of the currently conservative Supreme Court. However, my side got in its licks for a long time. And will again. Lifetime appointments are the only way to insure that chaos, rather than a court, doesn’t reign supreme.

    We can see what happens with elected officials, including those of the federal government.: there is tremendous acrimony and often gridlock; the good of the party – and self – is put above the good of the country.

    As my riding companion pointed out, politics isn’t removed from the Supreme Court with lifetime appointments. He brought up Gore vs. Bush, which was transparently political. Money quote from the decision:

    “Our consideration is limited to the present circumstances.” Which means that Bush vs. Gore couldn’t be used as precedent for following cases. This was a one-off case, not rooted in law, ensuring a similar case going the other way couldn’t come back to bike the same justices in their behinds.

    And if you’re a liberal like me, some terrible events have flowed from that decision, like the war in Iraq.

    Should a Congressional committed have called up Scalia or Renquist or Thomas to testify about their decision? Should Clinton have ordered the vote to continue in Florida? Should the Florida Supreme Court appealed directly to Congress or Clinton? Apparently the answer is yes, according to Gingrich’s logic.

    There’s a reason we have agreed to obey the Supreme Court rulings, even if we are extremely upset with the decision. For while we may have to put up with some horrible decisions from justices appointed for life, chaos would ensue without a final arbiter.

  28. steve says:

    “I must honestly admit to being confused as to which version of the Constitution you are reading.”

    I thought I was engaging in obvious over the top sarcasm. Guess not. Kind of depressing.

    Steve

  29. Christopher says:

    Years ago the Supreme Court took the Bible out of the schools and they went down the drain: no discipline or respect. Then the whole society had a complete moral breakdown with scandals, greed, and crime in high places, gangs taking over the cities, and the decline of the family structure. We paid the price for that one.

  30. Ernieyeball says:

    In 1954 Congress injected the words under God into the Pledge of Allegiance. Since then the schools went down the drain: no discipline or respect. Then the whole society had a complete moral breakdown with scandals, greed, and crime in high places, gangs taking over the cities, and the decline of the family structure. We paid the price for that one.
    FTFY

  31. Eric Florack says:

    Lincoln would also point out that the decision was severely divided (there were nine opinions) and that the conclusion, that the right to own slaves was “expressly” affirmed in the Constitution was ridiculous.

    That seems to be no less or more ridiculous than some of the other “rights” that are “expressly” a part of the constitution.

  32. Eric Florack says:

    For example, President Obama decides that Supreme Court rulings upholding the 2nd Amendment are overly broad, so he ignores them and confiscates all guns;

    Quite.

    Isn’t it odd, that’s so much spittle is being wasted on Newt saying that he would do what Liberals have been doing for decades? Funny, how it’s valid one Obama does it. Apparently the difference boils down to whether not liberals agree with ignoring a particular, or not. No matter how many people die in the process

  33. Pug says:

    @Eric Florack:

    And I’m sure you wholeheartedly agree with radical decisions like the Robert’s Cout ruling money is speech, mainly because Republicans have more of it, and it should be unlimited in politics.

    The current Supreme Court with Roberts, Scalia and Thomas is every bit as radical as the Ninth Circuit.

  34. steve says:

    “Isn’t it odd, that’s so much spittle is being wasted on Newt saying that he would do what Liberals have been doing for decades? ”

    When were all of our guns confiscated? Do I need to go turn mine in?

    Steve

  35. anjin-san says:

    Poor bit is sounding more unhinged than usual. I guess hitching his wagon to Newt’s star only to watch it plummet to earth 20 minutes later was too much for him.

    Pray tell, where are all the dead bodies of liberal victims piled up? Where have the Obama thugs taken all the seized guns?

  36. sam says:

    @Eric Florack:

    Is it possible for the Supreme Court to make an unconstitutional ruling?
    I daresay history shows that it can, and does.
    Would it thereby have been constitutional for the president to ignore and defy the court as regards Dred Scott for example?

    The horrible thing about Scott vs. Sanford was that the core of the ruling was constitutionally sound. Black folks were property, and the 5th Amendment is pretty clear that citizens cannot be deprived of their property absent due process, where proscribing transport of said property anywhere in the United States counts as deprivation of the property.

    It took a civil war to correct the original racist constitution.

  37. Anton Szandor LaVey says:

    @Christopher: “Years ago the Supreme Court took the Bible out of the schools…”
    How many years ago? Please cite the case in which the US Supreme court “took the Bible out of schools…”
    What are you talking about?

  38. mantis says:

    @Eric Florack:

    For example, President Obama decides that Supreme Court rulings upholding the 2nd Amendment are overly broad, so he ignores them and confiscates all guns;

    Quite.

    Isn’t it odd, that’s so much spittle is being wasted on Newt saying that he would do what Liberals have been doing for decades? Funny, how it’s valid one (sic) Obama does it.

    Bithead actually believes the president has confiscated all guns. Wingnuts do live in their own little reality.

  39. mantis says:

    When wingnuts say “the Supreme Court took the Bible out of the schools,” what they mean is the Supreme Court ruled it unconstitutional for public, government-run schools to force students to pray.

    They’re still pissed about it, even though it happened in 1962. They are pissed because while they can teach their own children any religion they want, and their children are free to pray in public schools if they want, their real goal is to have the state teach everyone’s children their preferred religion. They believe in the Constitution only until it stops them from forcing their religion onto others (i.e. not at all).

  40. anjin-san says:

    When were all of our guns confiscated? Do I need to go turn mine in?

    Maybe if I give them the Browning, I can manage to keep the Baretta.

  41. Homer Simpson says:

    @mantis: “When wingnuts say “the Supreme Court took the Bible out of the schools,” what they mean is the Supreme Court ruled it unconstitutional for public, government-run schools to force students to pray.”

    DOH!…Thanks for clearing that up.
    Do U think we will hear from Christopher on this?