Newt for SCOTUS?

One of Newt Gingrich’s unique talents is his ability to make a sensible or serious argument in an extreme way that raises everyone’s hackles.  I suspect he originally developed this trait on purpose, as a way of drawing the sharpest possible contrast with liberalism, which served his grand strategy well in his insurgent days in the House in the 1980s and 1990s.  Think of it as the conservative version of Alinsky tactics.  But it has become such second nature to him that he can’t moderate his rhetoric in the manner more necessary to a presidential candidate.

Consider his comment a few weeks ago that we ought to consider putting school kids in poor neighborhoods to work as a means of teaching work habits.  From the reaction you’d have thought he’d proposed forcing 10-year-olds down coal mines for 14-hour shifts, when in fact he was proposing a voluntary program.  But more to the point, there’s clearly something amiss when it is perfectly acceptable to be for every conceivable government job-training program for young people in bad neighborhoods, but considered outrageous if you actually propose to put such young people to work.  For a long time now Newt has proposed paying high school kids to get good grades in math and science, with little criticism.  Of course, what really rankled Newt’s critics this time was his description of (some) poor neighborhoods where there were few or no functioning examples of real work as opposed to drug dealing and crime.  It was a transgression against political correctness (see: Moynihan Report, shameful reaction to, 1965), or an example of one of Michael Kinsley’s famous “gaffes” where someone told the truth.

Likewise his fresh comments about the judiciary a few days ago.  His remarks about impeaching judges for their “anti-American” decisions and sending U.S. Marshalls or Capitol Police to bring federal judges before Congress to explain their outrageous rulings is surely going to be construed as a banana-republic dictator-like inclination to undermine the independence of the judiciary.  At the very least it is said to violate the separation of powers.

Not so fast.

Gingrich is quite right to call out the infamous phrase in Cooper v. Aaron that the Constitution is what the Supreme Court says it is.  The Constitution doesn’t say “We the judges”—it begins “We the people.”  All three branches have constitutional prerogatives—the principle known as “correlative review”—and we see constant fighting between the legislative and executive branches over the interstices constitutional power.  Witness the fury over presidential “signing statements” that lay out how the executive branch will interpret or apply a new statute.  Congress from time to time cites an executive branch official for contempt of Congress for refusing to testify or turn over documents; such fights usually end up in court to determine the legitimate bounds of executive privilege.  Or think of Gerald Ford appearing before Congress to explain his pardon of Richard Nixon.  More acutely, Congress has threatened to jail recalcitrant administrators (such as EPA Administrator Anne Gorsuch in 1983) in the Capitol jail, which apparently still exists.  Should the judiciary be completely immune from any inter-branch friction?

It is not automatically clear why the thought of having judges explain their jurisprudence to Congress is such an outlandish idea.  The separation of powers issues the judiciary has itself raised (like taking over the Kansas City school district a couple decades ago) ought to be as much fair game for the other branches as executive-legislative disputes.  There’s a hint in Alexander Hamilton’s discussion of the Supreme Court in Federalist 78 that the Court needs to be in some kind of essential harmony with the executive, and by implication Congress too, when he writes that the Court has “neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  What if the executive or Congress, in harmony with public opinion, disagree with the judiciary’s view of an issue?  Newt has singled out a federal judge who ruled recently that a public school district in Texas could not, among other things, use the words “prayer,” “amen,” “invocation” or “benediction” during a graduation ceremony.  I’ll leave it to the First Amendment lawyers to argue whether this ruling is consonant with the tangled and contradictory precedents on the Establishment Clause; what is undoubted is that a large majority of Americans—we the people—think this is stupid.  (Pat Moynihan used to comment on the incoherence of Establishment Clause jurisprudence by pointing to one ruling that said public schools could not supply books to parochial schools, but in a separate case holding public schools could supply maps.  “What about an atlas?”, Moynihan asked.  Seems like a fair question to pose to a judge in a hearing to me.)

A better example is Lincoln’s limitation of applying the principle of the Dred Scott decision, and thereby directly contesting the Supreme Court over the interpretation of the Constitution.  In his fine book First Things Hadley Arkes points to a series of forgotten executive acts:

During the first year of the Lincoln administration, a black man who was an inventor applied for a patent in Boston, and he was refused by the Federal Patent Office on the ground that, according to the ruling of the Court in Dred Scott, he was not a citizen of the United States.  That same year (1861) a young black man from Boston applied for a passport to study in France, but the State Department refused to issue the kind of passport that it extended to U.S. citizens.  Once again it was assumed that the case would be governed by the Dred Scott decision.

In both cases Lincoln overruled these decisions, and ordered the patent and the passport to be granted.  I have sometimes mentioned these two cases to students, and posed the following question to the class: Did Lincoln act unconstitutionally?  A surprisingly high proportion of students answer in the affirmative, because they have so fully conceded to judicial supremacy.  Arkes continues:

It is worth noticing that in neither case were the circumstances even remotely similar to the ingredients that described the Dred Scott case.  The blacks were not former slaves; the rights they sought to exercise did not depend on their sojourn in a territory of the United States; and there were no former owners seeking to vindicate their rights of property in slaves.  The executive agencies in these cases were doing precisely what Lincoln argued they need not, and ought not, be done: they were applying what they took to be the principle in the Dred Scott case to situations quite far from any circumstances present in that case.  That Lincoln was committed to resist, and the administration reversed both decisions: both the patent and the passport were issued.  A year later the administration firmed up the legal grounds for its acts when the attorney general published his legal opinion that free blacks born in the United States were to be regarded as citizens.

It is precisely this kind of argumentation about constitutional principles that has practically ceased in our presidential campaigns, and few are the candidates who can give the most basic account of a general theory of the Constitution.  Citing the 10^th Amendment doesn’t cut it.  Want to have some fun?  Ask the candidates to explain the 9^th Amendment some time.  (Robert Bork compared it to an inkblot, though I doubt Madison and the rest of the authors of the 9^th Amendment thought it so.)  Or, when I hear Republican candidates say, as they sometimes do, that they’d appoint justices like Scalia and Thomas, I ‘d love to follow up: “Which one?  They’re really quite different in their reasoning, even if they often vote together.  So which jurisprudential philosophy do you prefer, and why?”

I doubt Newt would do very well at that one either, but maybe we should put him on the Supreme Court and let him find out?  While his handling of this issue is typically over the top, it is useful nonetheless.