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NEWT 2012 responds to Judge Kevin Burke on the role of the federal judiciary

Newt Gingrich
Minnpost photo by Terry Gydesen
Newt Gingrich

The following commentary, which was published on the NEWT 2012 website, responds to MinnPost’s Oct. 20 Community Voices piece, “Newt Gingrich’s attacks on the courts: Should we pay attention to him?” by Judge Kevin S. Burke. The campaign also posted a second responsehaving to do with Burke’s interpretation of the Establishment Clause.

In a recent speech and a 29-page campaign position paper, Republican presidential candidate Newt Gingrich outlined his 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.

In contrast, Gingrich supports the constitutional and historical view that the Executive and Legislative branches each have an independent responsibility to interpret the Constitution, and when they believe the federal courts, including the Supreme Court, have engaged in a serious constitutional error, then they have the capability to choose among an array of constitutional powers to check and balance the courts. This view is based in the founding generation’s understanding of the separation of powers, and the fact that we have three co-equal branches of the federal government. Our forebears did not design a system in which the Supreme Court is placed hierarchically above the executive and legislative branches.

In his recent op-ed reacting to Gingrich’s rejection of judicial supremacy, Judge Burke charges Speaker Gingrich with “ignoring a lot of facts” and “rewriting history, a lot of history” in the context of Gingrich’s discussion of the various constitutional powers the political branches have to check and balance the federal courts. Burke concludes his opinion piece by saying that Gingrich owes the public a “fidelity to factual accuracy in the telling of history.”

Yet it is not clear from Burke’s op-ed what facts Gingrich is allegedly ignoring and what exactly it is about Gingrich’s accounting of history that Burke believes is being rewritten.

In any event, Burke piece strongly suggests that he believes that six of the legislative branch and/or executive powers that Gingrich described on a recent Sunday talk show and in a recent speech – subpoena power; spending power; limitation on jurisdiction; abolishing judgeships; impeachment; and ignoring or limiting the application of Court decisions – are not powers that the political branches could use to constitutionally check and balance the judicial branch when it exceeds its powers, as Gingrich believes.

Let’s review each power in turn.

First, with respect to the subpoena power, both Article II, Section 4 (Impeachment Power) and Article III, Section 1 (“Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”) contemplate situations in which the subpoena of federal judges may be required. To say that a Federal judge may ignore a subpoena is to countenance that Congress is unable to inquire into impeachable offenses or bad behavior. 

Moreover, Article 1, Section 8 and Article III, Section 1 make clear that Congress has the power to create courts inferior to the Supreme Court. Article III, Section 2 also allows Congress to control the appellate jurisdiction of the Supreme Court (and all inferior courts) by “such exceptions, and under such Regulations as the Congress shall make.”

Thus, with respect to the inferior Federal courts, if Congress can control the existence of those courts entirely, surely it can look into the operation of those courts and their administration. The greater power should include the lesser.

But leaving aside these unusual situations, Senate committees are known today to ask judges subject to Senate confirmation to come before congressional committees in the future. The question has been phrased like this by a Senator to a judge up for confirmation: “Do you agree without reservation to respond to any reasonable summons to appear and testify before any duly constituted committee of Congress if you are confirmed?” 

Second, regarding the spending power, is Judge Burke suggesting that Congress does not enjoy plenary power over the federal purse?  Cutting funding to the courts may not be an effective manner to check and balance the Court, but Congress clearly has the sole power to appropriate money from the Treasury. If Congress can vote to cut off funds to the Executive branch for carrying out military operations abroad, it can surely cut off funds to a court.

Third, the legislative power to limit the jurisdiction of the federal courts is spelled out in Article III, Section 2. Again, while the power to limit the jurisdiction of various federal courts may not often be used, it has clearly been done so in the past and is clearly constitutional. 

Fourth, Judge Burke doesn’t like the precedent that the Jeffersonian Congress abolished judgeships (18 out of 35 federal judgeships) and strongly suggests that it is an historical aberration that should not be repeated. Judge Burke may be right. Perhaps such an action should not be repeated. But Congress clearly has the power to abolish inferior court judgeships.

Fifth, Burke clearly conveys that he doesn’t like the impeachment power discussed in the context of holding judges accountable for their opinions. But Burke’s argument is not with Gingrich; it is with Alexander Hamilton and early Supreme Court Justice Joseph Story.

In Federalist 81, Hamilton describes impeachment as an “important constitutional check…. upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted (sic) with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”

In Federalist 65, Hamilton describes the subject matter of impeachment as arising from “those offenses which proceed from the misconduct of public men, or, in other words from the abuse or violation of some public trust. They are of a nature which with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

In his magisterial Commentaries on the Constitution of the United States, Supreme CourtJustice Joseph Story paraphrased and summarized the work of Richard Wooddeson, a preeminent English jurist who was regularly cited by courts in the young American republic, who wrote that judges could be impeached if they “mislead their sovereign by unconstitutional opinions.” Justice Story summarizes Wooddeson:

In examining the parliamentary history of impeachments it will be found that many offenses not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power (Joseph Story (Supreme Court Justice from 1811-1845), in his Commentaries on the Constitution of the United States, 1833)

Justice Story further notes in his Commentaries that judges are subject to impeachment for offenses that are not criminal:

The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will probably be applied, they will respect functionaries of ahigh character, where the remedy would otherwise be wholly inadequate, and the grievance be incapable of redress. Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character . ….

Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it . … [N]o one has as yet been bold enough to assert that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanors …(Joseph Story, Commentaries on the Constitution of the United States, 1833)

Sixth and finally, regarding the power to ignore or limit the application of a Supreme Court decision, Judge Burke should consider the actions taken by President Abraham Lincoln in the wake of the 1857 Supreme Court decision of Dred Scott, in which Supreme Court voted 7-2 for the constitutional interpretation that blacks who came to America and held as slaves, and their descendants, were not protected by the Constitution and could never be U.S. citizens. 

Lincoln believed that the Supreme Court’s decision was an erroneous interpretation of the Constitution, and as President, Lincoln acted in accordance with his own understanding of the Constitution. In defiance of the Supreme Court’s ruling in Dred Scott, Lincoln issued U.S. passports to freed slaves, thus treating them as citizens, and signed legislation restricting slavery in the western territories in stark defiance of the holding of Dred Scott.

In his First Inaugural, Lincoln stated plainly what he thought about the dangers of judicial supremacy:

The candid citizen must confess that 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 in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Lincoln was not the only President concerned that the idea that Supreme Court decisions should irrevocably fix the policy of the government on vital questions affecting the whole of the people would mean the end of self-government. Thomas Jefferson wrote that “[t]o consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which place us under the despotism of an oligarchy.”

This is some of the history, and these are some of the facts.

Many jurists would have the public believe that the only way to challenge certain decisions of the Supreme Court is to pass a constitutional amendment. Perhaps Judge Burke agrees. But as our Constitution and history show, and as Gingrich is reminding the country, this view is fatally flawed. The Executive and Legislative branches are not powerless to act in the face of judges who exceed the judicial power.

Vince Haley is Policy Director, NEWT 2012. This piece is reprinted with permission of the NEWT 2012 campaign.

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Comments (10)

  1. Submitted by Thomas Swift on 10/25/2011 - 10:16 am.

    “Yet it is not clear from Burke’s op-ed what facts Gingrich is allegedly ignoring and what exactly it is about Gingrich’s accounting of history that Burke believes is being rewritten.”

    Yup, what I said.

  2. Submitted by Jon Kingstad on 10/25/2011 - 10:43 am.

    Maybe Judge Burke was trying to be diplomatic and not accuse Gingrich of intellectual dishonesty. Cooper v. Aaron, 358 US 1 (1958) is not about the “modern theory that the Court alone has the power of judicial interpretive supremacy over the other two branches of the federal government.” Cooper v. Aaron upheld the authority of the federal courts to compel integration of the Little Rock Arkansas public schools. Here is the opening of an opinion “Per Curiam” by a unanimous court:

    “As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483 . That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property.”

    Is Gingrich seriously claiming that the Arkansas Governor and the Legislator had a right and duty to resist the Supreme Court’s decision?

    The Court has never claimed general supremacy over the other branches except with respect to interpreting the US Constitution. That’s Marbury v. Madison from 1803. Is that what Gingrich considers “modern judicial theory”?

    Gingrich says that he would overrule the courts in the area of national security. What court decisions is he talking about? Does he object to judicial voiding of the Congressional act that granted AT&T and other telecoms absolute immunity for violating people’s Fourth Amendment rights? Oh, I forgot. That’s never happened. Gingrich must mean that as President, he’d claim the absolute right to suspend habeas corpus whenever he feels like it. Right after he decreed that it was a federal offense for his subjects not to kneel when addressing him as “Your Majesty.”

  3. Submitted by Dennis Tester on 10/25/2011 - 01:34 pm.

    Newt’s right in that the “Supreme Court” was meant to be “supreme” of the judicial branch, not the entire government.

  4. Submitted by Jackson Cage on 10/25/2011 - 02:46 pm.

    If I were Newt and I were trying to make a cogent argument that I have a thoroughly understanding of the Constitution, the last guy I’d have standing with me is Tom Emmer. Game, set, match to Burke.

  5. Submitted by Richard Schulze on 10/25/2011 - 05:42 pm.

    Newt may be the ultimate GOP candidate. The party’s policies these days are about reality bending to belief and, with Newt, reality bends to the ego.

  6. Submitted by Rachel Kahler on 10/25/2011 - 06:56 pm.

    The problem is that Newt forgets that the Constitution sets up a system of CHECKS and balances, not just balances. It’s not about equal power, it’s about checking the power of each branch by the power of each other branch. The legislative and executive arms are not independent of the judicial arm. And vice-versa in each direction. Newt also mistakes the intent of the Constitution when those checks and balances are set forth. The reason that the Supreme Court should not be subject to the scrutiny of the legislative branch (outside of criminal matters), is so that the judicial branch is not overly affected by politics. Not a perfect system, but there it is. To balance that, a Supreme Court judgicial candidate must pass the muster of both the legislative and executive branches BEFORE becoming a Supreme Court Justice. It is also why the appointment is a life term.

    But then, I suppose Newt also believes that when he is President, he gets to appoint Congress, and punish them when they don’t do what he says, too.

  7. Submitted by James Hamilton on 10/26/2011 - 01:38 am.

    @ Mr. Swift. In response to Judge Burke’s post, you wrote:

    “Judge Burke questions Gingrich’s historical integrity, but his relating of the facts actually give warrant to Ginrich’s statements.

    Filling in minutiae left out of a speech sound bite and adding commentary does not prove infidelity to the facts.”

    That’s not what Mr. Haley said here. Mr Haley simply ignores the points made by Burke, specifically that Newt’s crime lay in ommiting salient facts about the authority to which Newt appealed, Thomas Jefferson.

    Burke was quite clear in his challenge:

    “By rebelling against Jefferson’s wishes, the Senate sent a message that the independence of the judiciary was not open to political manipulation. Political manipulation seems to be a central tenant of Gingrich’s present views on the judiciary, and that is where his fidelity to history and facts fall short. Should we pay attention to Newt Gingrich? Of course. But what Gingrich owes us in return is fidelity to factual accuracy in the telling of history.”

    As an old radio man might have said, Newt can’t ignore “the rest of the story.”

    BTW, what I posted in response Burke’s article was not Newt’s speech, but the entirety of his 21st Century Contract on this topic.

    @Dennis Tester: Do you mean to suggest that the Supreme Court is not the final arbiter of the meaning of the Constitution? The legislative and/or executive remedy for a disagreement with the Court’s reading of that document is to amend the Constitution, not silence the judges.

    Article 3 states:

    “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

    Congress has no power over the jurisdiction of the Supreme Court, though it may do what it wishes with inferior courts, so long as it does not run afoul of some other Constitutional restriction.

    Art. 3, Section 2 states:

    “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

    While Congress might have the power to limit the jurisdiction of inferior courts, it clearly does not have the power to limit “the judicial power” granted to the Supreme Court.

    Whether Congress can selectively attack the courts, for example by refusing to fund the 8th Circuit beyond the judges’ salaries, has never been addressed by the courts, to my knowledge. I suspect the USSCT would strike that down in the blink of a judicial eye, on a number of possible grounds.

    As for impeachment of federal judges: The power is there; the extent of that power is largely undefined, Judge Story’s Commentaries notwithstanding. We should all know by now that the opinions of a single judge mean little, particularly when those opinions are not rendered in a courtroom. The only way we’ll ever know what the limits on impeachment are is when Congress pushes past them.

    One last comment on Haley’s arguments:

    Lincoln’s Emancipation Proclamation did not purport to bestow citizenship on freed slaves. Thus, the Scott decision was irrelevant to the act. It was the Civil War Amendments (13-15) that made citizens of freed slaves.

    Newt’s 21st Century Contract and his speeches aren’t directed at anyone but his hoped for electorate. Haley’s response to Burke’s opinion is intended to buttress that effort, apparently using the same low standard of intellectual honesty. But then, them’s politics, aren’t they?

  8. Submitted by Dennis Tester on 10/26/2011 - 08:11 am.

    It’s sad yet instructive that the democrats never have these kinds of substantive debates about the role of government.

    Democrat politicians have it so easy. When your constituency responds favorably to “Tax the Rich!” there’s no need to challenge their intellect nor the basis for their assertions.

  9. Submitted by Rachel Kahler on 10/26/2011 - 11:35 am.

    @#8
    Eh? You mean to say that you’re sure that none of the above posters are Democrats? I’m pretty sure you’re wrong. But, you knew that. You just wanted to call Democrats stupid (a stupid assertion in and of itself).

  10. Submitted by Christie Whitman on 10/27/2011 - 03:42 pm.

    Every speaker has a bias and every statement of opinion has a context.

    Here, Newt Gingrich is a conservative Republican former Speaker of the House who disapproves of judicial activism. By contrast, Kevin Burke has a reputation as an activist DFL judge who believes that the law is whatever he says it is.

    As is always the case, the “truth” lies somewhere in between the polar-oppositional position statements stated by Burke and the Gingrich campaign. I do think that the constitutional analysis and conclusions of Speaker Gingrich are better researched and more accurate.

    It is also appropriate to note that, by submitting a political opinion in the form of an op-ed piece that utilizes his official title, Burke is trading on the prestige of the Minnesota Judicial Office to advance his own personal political views and agenda. This is a violation of judicial ethics.

    Moreover, Burke is a repeat offender. He routinely comments publicly on pending cases in the press, presumably to influence the outcome, and has been cited by the Minnesota Board on Judicial Standards for improperly commenting upon a pending case involving two friendly colleagues.

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