Judicial politicization, reform and activism: further thoughts on Gingrich’s views

Last week I unintentionally started a debate with the Newt Gingrich campaign by writing a commentary entitled “Gingrich Attacks on the Courts: Should We Listen to Him?”

Gingrich clearly did not like what I had to say and responded by posting a point-by-point rebuttal on his official website, later reprinted by MinnPost. (Well, in fairness to him, his staff posted it.) The response is even more remarkable than Gingrich’s previous comments. The premise of it “is a rejection of judicial supremacy, the modern theory put forward by the Supreme Court in its 1958 decision of Cooper v. Aaron that the Court alone has the power of judicial interpretive supremacy over the other two branches of the federal government and that the political branches must always acquiesce to the Court’s decisions about the ultimate meaning of the Constitution.”

For a nation whose ideal has been individual liberty, the stain on our character has always been race. First we tolerated slavery. Then we spent decades permitting brutal racial discrimination. Finally in 1954, Brown v. Board of Education began the long catharsis toward accepting that liberty cannot occur in a segregated society. Four years after Brown, in Cooper v. Aaron the Supreme Court ruled against any further delay by Arkansas in carrying out its desegregation plan. The Court rejected the idea that a state government could ignore or oppose enforcement of U.S. Supreme Court decisions. Chief Justice Warren wrote that the rights of black students could “neither be nullified openly and directly by state legislatures or state executive officials nor nullified indirectly by them by evasive schemes for segregation.”

The Cooper case was the Supreme Court’s first opportunity to rule on the enforcement of Brown v. Board of Education. It is a fascinating case not only for what it reveals about race in our country, but for what Gingrich must think if this is the case that anchors his thinking about the proper role of federal courts. To say that the reaction to Brown was vitriolic understates what occurred. In November 1956, an amendment was made to the Arkansas State Constitution that prohibited school desegregation. Arkansas Governor Orval Faubus defied federal law and sent in a militia to block nine black students – the Little Rock Nine – from entering Central High School. Faubus later recalled President Dwight Eisenhower summoned him and dressed the governor down “like a general tells a lieutenant.” Faubus and his allies argued that the states had the power to nullify federal laws or court rulings that they believe to be unconstitutional and that the states could use this power to nullify the Brown decision. 

Eisenhower may not have been wildly enthusiastic about what the Supreme Court had done, but he knew what was at stake. He told the nation on national television, “… Federal law … cannot be flouted with impunity by any individual or any mob of extremists.”  He then sent in the 101st Airborne to enforce the ruling that segregation in schools would end. The Little Rock Nine went to school on Sept. 25, 1958. 

Despite this history and what was at stake in Cooper v. Aaron, Mr. Gingrich told the Values Voter Summit that “judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”  What is morally wrong is telling children they have no right to go to desegregated schools. You don’t get to relive a childhood. Delay in desegregation ignored that so obvious truth. To say that a court faced with bigoted refusal to let children go to non-segregated schools was wrong or created some modern theory of judicial supremacy does not reflect any serious understanding of history or the meaning of liberty.

A few more critical points:

Politicizing courts isn‘t a threat to liberals or conservatives but to all of us. This view of the courts’ role under the Constitution is shared by many conservative jurists. This month Supreme Court Justice Antonin Scalia said in testimony before Congress that our democracy depends on keeping courts insulated from political agendas:  Justice Scalia was characteristically blunt,  “The framers would say, yes, ‘That’s exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legislation.’ “

Gingrich’s proposal to eliminate judgeships (or the 9^th Circuit Court of Appeals) for political reasons clashes violently with the Founders’ intentions. His proposal to summon judges for inquisition before Congressional Committees is equally flawed. His rebuttal to my commentary may selectively quote Federalist papers, but the undeniable fact he ignores is that in August 1787, the Constitutional Convention considered a plan to allow Congress to oust judges for reasons other than misbehavior in office. They rejected the idea.

There is a need for spirited debate and reform of the American justice system. It is at times far too easy for judges to become overly defensive about the judicial system. Our nation’s courts are good, but they have the opportunity to become great, and the times we live in require greatness. That is, in part, what is so disappointing about Gingrich’s view of our courts. Healthy debate followed by real reform is needed. We need our nation to commit to understandable and relevant performance measures for both federal and state courts. The key performance measure should be a focus on procedural fairness. We need a litigant’s bill of rights. You don’t have a right to win in court. No judge can (or should) commit to that. But litigants have a right to be listened to, treated with respect and understand judges’ orders. Those are measurable objectives and are the essence of where judges should properly be held accountable.

We need to have an honest debate on how to make the civil justice system more effective. It is, for many litigants, too expensive. It is, at times, too slow. But the solutions don’t have to be premised on denying access to courts or demonizing trial lawyers. At both the federal and state level we need to provide adequate and stable funding for courts. Financing courts is tricky in an era where there are legitimate competing demands for government appropriations. We need the best thinking to solve this funding crisis, not “I’ll turn off the electricity [of the 9^th Circuit Court of Appeals]” sound bites by Gingrich. There are few issues as hot button as immigration. But you don’t need to take a position for or against barbed wire on border fences or moats with alligators to conclude we need to reform and strengthen the immigration courts of the federal government. Drug courts, mental-health courts and more recently veterans’ courts have been established, been successful and are there in large part because of federal initiative. Surely presidential candidates should be expected to at least occasionally address substantive responses to real problems mixed in with hyperbole.

Judicial activism is a worn-out, meaningless phrase. The public deserves a far more robust debate. Justice Stephen Breyer has been less willing than any of his fellow justices to overturn acts of Congress. Among the most activist judges by that standard are Justices Antonin Scalia and Clarence Thomas. In fairness, Gingrich is not the only one to claim that courts are running roughshod over the other branches of government. Former Sen. Arlen Specter claimed that the Supreme Court “has been eating Congress’s lunch by invalidating legislation with judicial activism.”   The truth is judges rarely talk about judicial activism other than to express frustration about political pundits who use the term to bash courts. There are no judicial training programs on how to be an activist judge. There is a lot of thought and discussion among judges on how to fairly rule on the individual cases. Judicial activism is not a plague facing our society. The fact is judicial activism is a fiction.

According to the Institute for Justice’s Center for Judicial Engagement, the facts are:

•    Congress passed 16,015 laws from 1954 to 2003. The Supreme Court struck down 104 – or just 0.6 percent.
•    State legislatures passed 1,029,075 laws. The Supreme Court struck down 455 – or less than 0.05 percent. 
•    The federal government adopted 21,462 regulations from 1986-2006. The Court struck down 121 – or about 0.5 percent.
(See Government Unchecked: The False Problem of “Judicial Activism“ and the Need for Judicial Engagement)

There is nothing improper about impeaching mentally ill and habitually drunk judges; what is wrong is political intimidation of judges. This nation has nearly 30,000 sitting judges in state and federal court. We have had thousands of federal judges who have served with distinction. Rarely there is a rogue judge who should be removed, as I pointed out in my initial commentary. Judge John Pickering was our nation’s first impeached federal judge. In 1795 there was an attempt to remove Pickering from the New Hampshire Superior Court. It failed – but remarkably the state then convinced President George Washington to appoint him to the Federal District Court. Pickering was not up to the job, and several years later, at President Thomas Jefferson’s urging, was impeached and should have been. But where President Jefferson went wrong was the second impeachment he attempted. The impeachment of Samuel Chase was rejected by Jefferson’s allies and opponents because they recognized the danger of political intimidation of judges. In his rebuttal to my commentary, Gingrich’s policy director writes, “Burke’s argument is not with Gingrich; it is with Alexander Hamilton and early Supreme Court Justice Joseph Story.”  No reasonable historian believes that political intimidation of judges is good for our democracy. My argument is with Gingrich and others like him who believe that political intimidation of judges is good.

Cooperation between the branches is not unconstitutional. It is what is needed. Chief Justice Charles Evans Hughes described the judicial branch as “a separate but not an independent arm of government.” “In the great enterprise of making democracy workable,” he argued, “we are all partners.”   That spirit ought to permeate our debate about the future of our courts. What if government had ignored Brown v. Board of Education?  Gingrich is not alone in advocating a radical departure from our constitution and our values. Gingrich and his allies’ understanding of history is suspect. But more importantly their vision for our nation’s courts is flawed.

Judge Kevin S. Burke has served on the Hennepin County District Court for 27 years. He served as the chief judge for four terms. He is the president of the American Judges Association.