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 response, having 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.