Gingrich Finds Judicial Review Inconvenient

December 19th, 2011 at 11:49 am | 31 Comments |

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Newt Gingrich claims to be an historian (rather than, heaven forbid, a lobbyist), who was paid over a million dollars by Freddie Mac. Taking the former House Speaker at his word—if only temporarily—one has to assume that the giant, federally-protected home mortgage security company wanted Gingrich to help it better understand the historical events and forces that have shaped our political processes and institutions; his history lessons, it is implied, would help Freddie further its interests on Capitol Hill and within the Executive Branch. All of that would be a completely legitimate purpose, albeit a tad expensive one (even by K Street standards).

One cannot help but wonder, however, just what Mr. Gingrich said–from a historian’s perspective, of course—about one of the most consequential events in our nation’s history, the 1803 Supreme Court decision known as Marbury vs. Madison.

It was that landmark case wherein Chief Justice John Marshall, a Federalist icon, led a majority of justices to formulate and decree the principle of judicial review.

I don’t know when I first heard or read about Marbury vs. Madison—it was probably in junior high school; but, I do know that I and my peers read and discussed it in U.S. History and Civics classes many times in subsequent years, both in high school and as an undergraduate and graduate student. We learned that Marbury was a watershed moment, “a big friggin’ deal,” we might call it today. And it has served as a bedrock principle of our republic ever since, for it resides at the core of the separation of powers.

Because of Marbury, the federal judiciary is the recognized and essential referee when something has to be called in or out of constitutional bounds. As a democratic society we’ve gone along with that system for a very good reason: Someone has to have a whistle and a yellow flag, and the accompanying authority and respect to make the calls stick. Presidents must accept the Courts’ decisions, as must Congress, as must we all. We don’t give the loudest or most shrill people in the stadium the power to reverse the ref’s verdict. Nor do we turn to Gallup, Roper, or Harris to make the call.

We can disagree with the Court’s decisions, and have, from Marbury, to Dred Scott, to Roe vs. Wade and Bush v. Gore—and thousands in between and since. But we obey and respect them because the alternative is chaos and, for some, grievous injustice.

So when Mr. Gingrich rails against “activist” or “elitist” judges, or when he accuses the judiciary of being dominated by “un-American” values, we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue, rather than merely an objective (non-lobbying but high priced) historian. On the other hand, if his statements are an accurate reflection of Mr. Gingrich’s knowledge and understanding of American history, maybe Freddie Mac should seek a refund.

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31 Comments so far ↓

  • D Furlano

    Hungary decided to end constitutional judicial review. I think it is called authoritarianism.

    http://krugman.blogs.nytimes.com/2011/12/19/hungarys-constitutional-revolution/

  • baw1064

    Maybe Newt is such a Constitutional literalist that he opposes judicial review on the grounds that it not a power specifically enumerated to the Supreme Court in the actual text of the Constitution?

  • Emma

    I know lots of judges, federal and state. As a group they are awful, interested in perks and playing golf above all else. The only officials less deserving of respect are found in the executive and legislative branches. The framers knew what they were doing in setting these dogs against each other.

  • balconesfault

    So when Mr. Gingrich rails against “activist” or “elitist” judges, or when he accuses the judiciary of being dominated by “un-American” values, we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue,

    So what would you have to say about Clarence Thomas, then?

    http://thinkprogress.org/justice/2011/09/19/321978/justice-thomas-who-thinks-federal-child-labor-laws-are-unconstitutional-complains-about-judicial-activism/

    • dante

      I’d also love to hear Gingrich’s views on Citizens United….

    • Ray_Harwick

      we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue

      “somewhat” is a rather generous a word to use in this sentence.

  • GrandBargainHunter

    This railing against the “elites” is clearly just red meat for the base — GOP-style “class warfare” based on education rather than income. I doubt this is a sincere reflection of Newt’s understanding of history, though I have NO doubt that if he found himself with the power to lock up judges he disagrees with and ignore their decisions, he would use it. That is something else that separates him from Romney and Obama.

    • jakester

      Trouble is so many of the Foxtards & dittoheads are lapping up his dreck

      • Baron Siegfried

        I agree – and I think this is Newt realizing that he’s reached apogee and is now earthbound. He sees the polls, and knows it’s time to fold and get out of the game before it starts getting embarrassing. He’s cementing his credentials with his base, as did Cain, and will have a full speaking and book tour coming out of this (and maybe a movie or two!).

        Now it’s Paul’s turn for the media prostate check (and it’s damn long overdue, I might add).

  • gman

    This is an example of the absolute worst of Newt. He mixes obscure facts (or even lies) with convoluted logic supposedly supported by the true intentions of the Founders in order to lend credence to some bizarre theory that ultimately allows him to usurp & centralize power.

    In Newt’s 21st Century Contract With America (http://bit.ly/sedfgZ), Newt uses Federalist 78 as the philosophical underpinning in support of his proposal to restore the true role of the Judiciary. He quotes, “the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.” That is, in fact, an accurate quote, but is given without the proper context, and is intended to mean the exact opposite of what Newt says it means. The context is that Hamilton is saying that the executive branch controls the military (the sword), the legislative branch controls the budget (the purse), and the judiciary controls neither.

    Hamilton goes on the say, in the very same & following paragraphs, in the strongest possible terms, that the judiciary has “neither FORCE nor WILL, but merely judgement;” and that “it can never with success attack the other two [executive & legislative]; and that all possible care is requisite to enable it [the judiciary] to defend itself against their [executive & legislative] attacks.”

    The entire paper is written in support of the belief that “the complete independence of the courts of justice is peculiarly essential in a limited Constitution,” including the basic idea that the judiciary can declare acts of the other two branches void. Newt, with his incredibly dangerous cynicism, is proposing to do the very thing that Hamilton warns against, and is taking Hamilton’s own words out of context to offer support. Despicable.

    • Fastball

      Gingrich is taking his constitutional theorizing from Hugo Chavez rather than Alexander Hamilton.

  • John

    “Judicial Activism” is an accusation that translates to: I don’t like the outcome but I’m too lazy to argue on the merits.

    • icarusr

      Indeed:

      “As a jurist, I have a basic rule of legal sanity: the moment anyone other than a yokel dressed in a tricornered hat festooned with tea bags starts yammering about “judicial activism”, you look around to make sure you are not being punked. And where the said yammering is in an august publication written and edited by legal professionals for other professionals, you read the text closely to ensure it is not written in morbid irony. After all, it is a truth universally acknowledged that as potato may be differently pronounced (or even spelled, if you are a US vice-President), “judicial activism” is in the eye of the beholder, with the definition so elastic as to be meaningless; in this sense, to attack a court for being “activist” is not an expression of sound conclusion pursuant to legal reasoning, but rather a matter of mere opinion: this coffee is tepid, that one hot; this court is activist, that one not.”

  • dphenderson

    Keep in mind that an “activist” or “elitist” judge on any court in any situation is a judge with whose ruling one disagrees.

  • Lonewolf

    Perhaps some day Newt’s handlers will get around to giving him a quick primer in basic civics, and he will begin to understand the tripartite system of government that the US has had for, oh, two hundred and forty years.

  • MurrayAbraham

    To me the most ironic is that it is because Chief Justice Marshall knew Jefferson would ignore the court if it ordered Jefferson to give Marbury his commission, that his decision was written in such a way as to introduce the idea of judicial review if Jefferson didn’t give Marbury his commission.

    In other words, it is because a president threatened to ignore the Supreme Court that the court now has the power of judicial review that annoys Gingrich so much that he … threatens to ignore the court.

  • andydp

    I was reading the WSJ this morning and found this comment by former AG Mukasey on Newt’s “theory”:

    Some of the ideas are “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle,”

    Please also note that former Bush AG Alberto Gonzales chimed in:

    Mukasey and Alberto Gonzales, in exclusive interviews with Fox News’ Megyn Kelly, said they are particularly alarmed by provisions such as allowing Congress to subpoena judges after controversial rulings to “explain their constitutional reasoning” to the politicians who passed the laws.

    “The only basis by which Congress can subpoena people is to consider legislation. To subpoena judges to beat them up about their decisions has only — if they are going to say that has to do with legislation they might propose, that’s completely dishonest,” Mukasey said.

    “I think we have a great government, a great country because it’s built upon the foundation of the rule of law. And one of the things that makes it great and the rule of law is protected by having a strong independent judiciary,” Gonzales said.

    “And the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling. I believe that a strong and independent judiciary doesn’t mean that the judiciary is above scrutiny, that it is above criticism for the work that it does, but I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges.”

    As an aside:

    Based on Newt’s “theory”, the President can disagree with a decision and ignore it. I would love to hear the vitriol that would ensue if President Obama said he would ignore the SCOTUS decision on Obamacare and continue its implementation…

  • Graychin

    When Churchill said “We cannot allow internal developments (in Poland) to complicate our relations with the Vatican…” he was interrupted by Stalin, who asked ““How many divisions does the Pope of Rome have?”

    The Supreme Court has no divisions either. It sounds like Newt is Stalin’s latter-day soulmate.

    But Newt is smart enough to know better than this. He’s just pandering cynically to the Iowa Republicans who were outraged when the Iowa Supreme Court found that a ban on gay marriage was unconstitutional.

    Which it is. What business does government have in telling us who we may or may not marry? The states should grandfather all existing marriages as civil unions and recognize only civil unions from now on. Religious organizations should decide for themselves which civil unions to recognize and sanctify as “marriage.”

  • nhthinker

    The more Newt talks and people listen to the other side, then more Newt’s support is quickly leaking away…

  • HighCountry

    He’s circling the drain. Again. No surprise.

  • Rossg

    Gingrich is a consummate manipulator of facts and opinions. He quotes a few (disjointed) facts, presenting them as the basis for subsequent statements. Hence he was quick to refer to the Dred Scott decision, then remark that Lincoln chose to ignore this high court ruling, so we have the right to do so now. Of course, at the time anyone may have chosen to ignore the tenets of Dred Scott, we had several states in rebellion, with slaves escaping to Union lines. These facts are unimportant to Gingrich. How anyone can support such a lame-brained person for president is beyond me.

  • kwipster

    Perhaps when Newt losses the Republican endorsement he can take up the fallen mantle of North Korean leader Kim Jong-il. I don’t think he would have put up with those activist and elitist judges either.

  • gman

    Best quote came from Laurence H. Tribe, a law professor at Harvard, who said The Newt’s lack of legal training was helpful only up to a point.

    “The advantage of not being a lawyer is the ability to look outside the box,” Professor Tribe said. “The disadvantage is to be so woefully ignorant of what’s inside the box.”

  • Houndentenor

    Yes, Newt, Dred Scot was a horrible decision. We got rid of it by amending the Constitution. The system works just fine. Eventually, that is.

    BTW, Newt seems to be unaware that judges issue opinions in which they justify their decisions. They are in the public record. There is no need for that judge to appear before Congress to read that decision.

    Again, Newt demonstrates that he’s not nearly as smart or knowledgeable as he and his fans think he is.

  • Redrabbit

    To quote the great Josh Lyman; can this guy even open his mouth without pandering?

  • gman

    You know who else thinks judges should have to answer to the leader? Dictators.

  • Rabiner

    You would of expected the author who writes over and over about how Kagan should recuse herself or how justices misinterpret the constitution would have a word or two on this issue?