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The Supreme Court's Judgment Isn't Absolute
· Sunday, January 1, 2012
Newt Gingrich's presidential ambitions may be heading for the exits -- opinion polls suggest that the former House speaker's hour has come and gone -- but his critique of judicial supremacy deserves to taken seriously no matter what happens in Iowa or New Hampshire.
In a 54-page position paper, Gingrich challenges the widely held belief that the Supreme Court is the final authority on the meaning of the Constitution. Though nothing in the Constitution says so, there is now an entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment -- or a later reversal by the court itself -- can alter that decision.
Thus, when House Minority Leader Nancy Pelosi was asked for her reaction to the Supreme Court's notorious eminent-domain ruling in Kelo v. New London, she replied as though a new tablet had been handed down from Sinai: "It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken."
But judges are not divine and their opinions are not holy writ. As every American schoolchild learns, the judiciary is intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president -- or the states or the people, for that matter -- to simply bow and accept it.
Naturally this isn't something the courts have been eager to concede. Judges are no more immune to the lure of power than anybody else, and their assertion of judicial supremacy -- plus what Gingrich calls "the passive acquiescence of the executive and legislative branches" -- has won them an extraordinary degree of clout and authority. That aggrandizement, in turn, they have attempted to cast as historically unassailable. In Cooper v. Aaron, the 1958 Little Rock desegregation case, all nine justices famously declared "that the federal judiciary is supreme in the exposition of the law of the Constitution" -- a principle, they asserted, that has "been respected by this court and the country as a permanent and indispensable feature of our constitutional system."
That wasn't really true. In the words of Larry Kramer, dean of Stanford's Law School (and a former clerk for Justice William Brennan, one of the court's liberal lions), "The justices in Cooper were not reporting a fact so much as trying to manufacture one." It worked. In recent decades, the claim of judicial supremacy has clearly prevailed. Look at the way it's taken for granted, for example, that whatever the Supreme Court decides next spring about the constitutionality of the ObamaCare insurance mandate will settle the issue once and for all.
Gingrich argues that this is unhealthy, and that the elected branches have an obligation to check and balance the judiciary. "The courts have become grotesquely dictatorial, far too powerful and, I think, frankly arrogant," he said in Iowa last month. From the unhinged reaction his words provoked -- "this attempt to turn the courts into his personal lightning rod of crazy is simply Gingrich proving yet again that he needs to be boss of everything," railed Dahlia Lithwick in Slate -- you'd think he had declared war on the heart and soul of American democracy.
But the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government -- executive, legislative, or judicial -- rules by unchallenged fiat. Gingrich is far from the first to say so.
"To consider the judges as the ultimate arbiters of all constitutional questions," wrote Thomas Jefferson in 1820, is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Abraham Lincoln -- revolted by the Supreme Court's ruling in Dred Scott that blacks "had no rights a white man was bound to respect" -- rejected the claim that the justices' word was final. "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," he warned in his first inaugural address, "the people will have ceased to be their own rulers."
Not all of Gingrich's proposals for reining in the courts, such as summoning judges before congressional committees to explain their rulings, may be wise or useful. But his larger point is legitimate and important. Judicial supremacy is eroding America's democratic values. For the sake of our system of self-government, the balance of federal power needs to be restored.
© Copyright 2012 Globe Newspaper Company
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TruthInAction
Written like a patriot.
Posted January 1, 2012 at 4:22:41 AM
Brian
Ok, so, what do we do? It's all very well to say "America's balance of power needs to be restored", but how? That has been my biggest question all along: How do we fix this?
Posted January 1, 2012 at 9:42:37 AM
JohnH
The same fix we should have for an out of control legislative branch.......Term limits! Let the judiciary be held accountable to the people every, say, six to ten years. There are more than enough cases of "out of control" legislators AND jurists to warrant term limits. Appointments for life and sentimental voters be damned!
Posted January 1, 2012 at 10:21:01 AM
Howard Last
Anyone remember the Dread Scott decision? Or Andrew Jackson refusing to follow a ruling by the Supremes?
Take a good read of Article 3, Congress has power over the courts, both the Supremes and the inferior courts.
Posted January 1, 2012 at 12:16:33 PM
BoFromTexas
The balance of power envisioned by the signers of the U.S. Constitution, spread over three divisions of government (judicial, executive, legislative) was intended to level the playing field of power, not to grant to any one branch supreme authority. Power corrupts, and all human beings want more power than they have. Likewise, the USSC would like to convince everyone that their decisions are Holy Writ (which they are definitely not). In addition to the infamous Dred Scott decision, you have the far more recent Roe v. Wade, where the right of "privacy" was dreamed up with no legal precedent. Kelo v. New London is infamous among conservatives, and would have caused the founders to suffer infarctions, since it takes private land from private landowners simply because the government wants it for some purpose not particularly connected with the general public welfare and good. In other words, courts makes mistakes, some of them egregious. In order to counter these mistakes, we must, at every opportunity, challenge bad law. The chances are good that you will find a judge who will rule against the USSC or federal appeals court decision, and that can open the door to a new panel of judges reversing a preceding panel of judges. Decisions are not written in granite, nor are they sacrosanct. The remedy is to fight bad law at every chance. Even when you lose, you have made inroads.
Posted January 1, 2012 at 8:23:04 PM
Tim
Courts do not make law - they issue opinions; and if the Executive or Legislative bodies consider those opinions to be unconstitutional, they are under no obligation to obey. The court has no enforcement authority other than that supplied by the Executive. Read "Turning America Right Side Up". www.rightsideuppress.com
Posted January 2, 2012 at 12:11:48 PM
BJ
All three branches have become despotic. The supreme's after all are political appointees. The fed govt was supposed to be an umpire between the states and not to be the power over the states. There were only supposed to be about 3 federal laws and then the states could decide what they wanted for themselves. If you didn't like homosexual marriage you could move to a state that felt like you do.
There was never any provision in the Constitution for the dept. of energy, education, environment, etc. Govt wants to grow more powerful, especially under the socialists. Now the politicians are
so corrupt they benefit from the legislation they pass, the pres thinks he's a damn king, and the supreme's think they make the law of the land. We are in deep doody and I for one do not think that voting will get us out of it because we never quite repair the damage done to our freedom before we elect more traitors.
TERM LIMITS-IMPEACH-PROSECUTE
Posted January 2, 2012 at 4:47:57 PM
BJ
All three branches have become despotic. The supreme's after all are political appointees. The fed govt was supposed to be an umpire between the states and not to be the power over the states. There were only supposed to be about 3 federal laws and then the states could decide what they wanted for themselves. If you didn't like homosexual marriage you could move to a state that felt like you do.
There was never any provision in the Constitution for the dept. of energy, education, environment, etc. Govt wants to grow more powerful, especially under the socialists. Now the politicians are
so corrupt they benefit from the legislation they pass, the pres thinks he's a damn king, and the supreme's think they make the law of the land. We are in deep doody and I for one do not think that voting will get us out of it because we never quite repair the damage done to our freedom before we elect more traitors.
TERM LIMITS-IMPEACH-PROSECUTE
Posted January 2, 2012 at 6:13:51 PM
A.R. Nash
The attitude that the federal courts are above the law of the Constitution and are its supreme arbiters is founded on the principle that if you tell a big enough lie long and loud enough, it will be mistaken for the truth, after all, how could a liar have the gumption to lie so fervently or inexhaustively? And so the lie is believed. And so everyone falls for the "rules" promulgated by those who have the most prestige and power to gain from making the rules. And everyone bows low at the unholy feet of flawed, biased, political men who Fate has placed on the federal bench. Just like the Congress that passes laws that pertain to everyone except themselves, such as sexual harassment and insider trading.
Posted January 3, 2012 at 6:10:54 AM
B. Kern
Personally, I prefer periodic retention votes over term limits. A flat term limit discharges both the competent and incompetent judges. In Iowa, which has retention votes on the general election ballot, an outrageous supreme court ruling resulted in three justices being ousted.
Posted January 3, 2012 at 1:13:18 PM
FairTaxpair
Because of the likes of the Tea Party and Gingrich's comments---yes, and Ron Paul's, we have become more knowledgable as voters. Not to forget to thank the likes of Patriot Post for its steadfast commitmet, daily, to educate.
Posted January 3, 2012 at 2:25:37 PM
VoR
No provision in the Constitution for the Air Force either - only Army and Navy. Abolish the Air Force!
Posted January 4, 2012 at 12:55:05 PM