This is one of many reasons why I don’t think Newt Gingrich should be President:
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.
Newt Gingrich is supposed to be a smart man. He tells us this often enough. But the more I hear him, the more I become convinced that he’s a blowhard — the Republican answer to Algore. He’s more interested in sounded smart than being smart. And this statement is perfect illustration — it sounds erudite but it is historically, legally and constitutionally wrong.
First, the SCOTUS docket has been shrinking for decades and is well under a hundred cases a year. This is out of more than 10,000 petitions. It is very rare for a case to be even heard by the Court, least of all overturned.
Second, the Court has shown a depressing tendency in recent years to side with government. In the last few years, for example, they have decided that apartments can be searched without a warrant based on the smell of marijuana; that prosecutors can not be sued for burying exculpatory evidence; that the sound of a toilet flushing justifies a search. They have upheld things like asset forfeiture, campaign finance restrictions and eminent domain.
I have said this before and it is worth repeating: an activist court is not necessarily a bad thing. The Heller decision, which recognized an individual right to bear arms, was one of the most activist decision in recent history. Lawrence v. Texas was a good activist decision, in my opinion. Safford v. Redding was a good activist decision. Had the Court decided against eminent domain abuse in Kelo or for state’s rights in Raich — and I believe they should have done both — it would have been very activist. If they overturn Obamacare, that will be one of the most activist decision in history.
(When pressed on the latter point, Newt waffled. It’s possible — likely even — that even Newt doesn’t believe the shit that’s coming out of his mouth and is just playing to the base. That’s almost worse.)
Newt also shows (or mimics) a fundamental misunderstanding about how our government is supposed to work. All three branches — executive legislative and judiciary — takes oaths to the Constitution. All three are bound to protect our liberty. Newt does have one point — the Supreme Court is not supposed to be the ultimate arbiter of our Constitution rights. But he missed the bigger point: all three branches are supposed to protect our rights. We’ve forgotten this because our legislatures have gotten too used to passing laws that they hope the Court will overturn. We’ve forgotten this because Constitutional questions about laws are usually waved off with a “the courts will decide”. But this tendency — which I call playing Russian Roulette with the Constitution — is a dangerous and pathetic dereliction of duty. The legislature is supposed to judge every law and refuse to pass it if they believe it is unconstitutional. The President is supposed to veto an unconstitutional law and, in extreme situations, refuse to enforce it (assert forfeiture comes to mind). The Courts, seen in this light, are not exercising “judicial supremacy”. They are our last line of defense.
A conservative, a scholar, a strict constructionist, a Republican — should be aware of this; should respect it. That the Republican front-runner will not or can not respect the sometimes maddening, often frustrating but always essential system of checks and balances is troubling.
The history of ignoring the Court is an extremely ugly one. Newt cites Lincoln for ignoring Dred Scott. But Lincoln also ignored Ex Parte Merryman and imprisoned people in violation of habeas — an ominous precedent given what Congress just passed. Jackson ignored the Court when he sent thousand of Cherokee to die on the Trail of Tears. And let’s face it: what this is really about is Hamdan v. Rumsfeld. What this is really about — and Newt says it pretty explicitly — is the bogus and dangerous neoconservative idea that the President should have basically unlimited authority when we are at war — especially in a war that has no foreseeable end. (Here is the late great Hitchens on that).
Newt is falling back in the polls right now. He deserves to. Either he is dangerous or pretending to be. Either way, he doesn’t belong anywhere near the White House.