Newt Gingrich and the Judiciary: Blowing the Fuses of Conventional Minds

Dan K. Thomasson’s syndicated columns in the Leesburg Daily Commercial often come across as a welcome voice of reason in comparison to the shrill certitude of the right-wing propagandists to whom we are so frequently subjected. But this rather extreme contrast tends to mask the fact that Thomasson epitomizes exceedingly conventional wisdom, single-handedly reminding us what sensible, mature, serious people are supposed to think. And that conventional mindset, reinforced by the crushing weight of consensus, can be just as much an intellectual prison as the deranged fantasies of the far-right.

This phenomenon was illustrated recently by Thomasson’s musings on the tragic case of Bradley Manning, which took the easy route of wondering whether Manning’s inner conflicts about his sexual orientation had rendered him unfit for duty as an intelligence officer. Conventional minds such as Thomasson’s do not ask why the United States – supposedly a republic of laws, not a military empire – has tortured Manning in its desperation to make a case against Julian Assange and Wikileaks. Nor do they posit that the purpose of this treatment is largely to intimidate any federal employee thinking about letting the American people know what their government really does with their money in their name. (If you haven’t seen the video – leaked by Manning – of our brave troops gunning down civilians from the safety of an Apache helicopter, as if in an amusing video game, I suggest you watch it – if you can find it.) It is scarcely surprising, then, to find Dan Thomasson’s mind utterly blown by Newt Gingrich’s decidedly unconventional ideas about the proper relationship between the three branches of American government. Of course, Gingrich is pushing the envelope for cynical political reasons, but at least he gives us an opportunity to think about fundamentals – something we’re absolutely, positively, not supposed to do.

In a blatant attempt to curry favor with the religious caucus-goers of Iowa, Gingrich has launched a campaign against activist federal judges, with a particular emphasis on decisions that enforce the separation of church and state. While there’s nothing new about a Republican politician courting evangelicals with this tacky love song, there is something remarkable in the extent to which Gingrich has expressed his ardor. (Well, we do know how passionate Newt can get about his country….) In a rare challenge to the deference we all show to the federal courts, Gingrich has asserted that the judiciary is but one of three co-equal branches of government, and refuses to grant the courts the final word on the matter of constitutionality. In fact, he would allow Congress to sub poena federal judges to explain themselves, with the threat of impeachment hanging over their heads, in the event that the courts displeased the elected branches. No stranger to the impeachment process, having been a driving force behind the impeachment of Bill Clinton while he was himself straying beyond the bounds of his own marriage, Gingrich has actually invoked Thomas Jefferson’s attempted impeachment of Justice Samuel Chase in support of his argument. (As we have noted before, Jefferson’s versatility makes him almost as useful as the Bible as a source of authority.) Commonly regarded as the father of the aforementioned wall of separation, Jefferson would no doubt be tickled pink by Gingrich’s context-free historical cherry-picking.

While Thomasson excuses Jefferson’s action as the teething trouble of a “baby nation,” glossing over the frustration Jefferson felt in dealing with a judiciary packed with Federalists by his moribund predecessors, he is unsparing in his scorn for FDR’s notorious court-packing plan, as conventional minds are wont to be. He neglects to mention, however, that the court-packing plan (which would have added another justice to the FDRbench for every member then aged over 70½), worked. FDR wanted the Court to come into the 20th century and read the Constitution – particularly the Commerce Clause – in the more expansive way required for the implementation of his New Deal legislation. In the famous “switch in time that saved nine,” Justice Owen Roberts – who had previously cast his vote with the arch-conservative “Four Horsemen” – mysteriously started to vote with the liberals, like Justice Felix Frankfurter, who urged the Court to exercise judicial restraint and defer to the wishes of the democratically-legitimate political branches. We shall leave for another time exploration of the great irony that New Deal liberals then advocated restraint, while reactionaries exercised the Court’s power at will.1 That seesaw has tipped both ways since, and it is exceedingly disingenuous of Gingrich to rail against judicial activism at a time when the Republican-dominated Roberts Court is actively re-writing the Constitution to suit the purposes of the corporate oligarchy, most lamentably in the area of political speech itself, a development from which Gingrich’s own empire had undoubtedly benefited.

But we can not elide the greater irony that Gingrich seeks to build upon the methods once employed by the modern G.O.P.’s arch-nemesis, or the obvious problem that Gingrich’s desired political tools could be wielded just as easily by the other side. One of the salient features of the modern, muscular, and cynical right-wing is its apparent desire to roll back the entire New Deal, never mind the Great Society, and return America to the (first) Gilded Age. By learning from the master himself (a man who also violated Washington’s carefully-set precedent of not serving more than two terms as president) Gingrich takes the impatience of the right to its next, logical expression. Not content to have young, reliable allies on the Roberts Court, Gingrich would simply railroad the cumbersome judicial process altogether by turning judges into nervous political lapdogs. Incredibly, however, he has failed to remember the earlier lesson taught by Jefferson’s Federalist antecedents: when you lose control of the political branches (and you will, at some point) the judiciary is your last, durable bastion against the new regime. Destroying the independence of the judiciary removes that final protection, allowing one’s opponents to quickly enact their preferences into law, as is common in fusion-of-powers systems like the U.K. In other words, Newt, even if you win, you are sowing the seeds for New Deal 2.0. One suspects that Mitt Romney’s backers understand that, and are quite content with the status quo.

Leaving behind the short- and long-term political cost-benefit calculation, for Gingrich personally and the parties in general, Gingrich’s proposal does raise some intriguing questions about the proper role of the “Least Dangerous Branch” (as erstwhile Frankfurter law clerk Alexander Bickel called it) in our constChief Justice Marshallitutional scheme. While Dan Thomasson’s mind could never admit the possibility, Gingrich’s model of inter-branch relations is actually well-grounded in theory, if not in practice. The Constitution does not explicitly grant the power of judicial review  – the power to nullify federal and state laws on the grounds that they are unconstitutional – to the federal judiciary. When the Court assumed that power, in the famous case of Marbury v. Madison (1803), Chief Justice Marshall executed a stunning coup by cobbling together several questionable interpretations. While he could simply have told the plaintiff that he had brought his action in the wrong venue and left it at that, Marshall seized the opportunity to assert a far-reaching power, making the Court the final arbiter of constitutionality and giving it a supremacy that was by no means inevitable. Gingrich is not the only historian to have found in the framers’ writings a belief that each branch could interpret the Constitution for itself within its own sphere. How such a legal babel would have worked is obviously dubious, but if we are going to be honest about our roots we must concede that Gingrich’s position, though undeniably cynical, is not ignorant at all.

When we read the Constitution as it was originally written, and ignore our knowledge of how things have evolved – especially the contamination of Madison’s pristine design with political parties – we find that Congress is unquestionably the most powerful branch. The role of the federal judiciary is not well defined in Article III, with the details being left for Congress to flesh out. The federal legislature has huge powers over the courts’ jurisdiction and structure; indeed, it would be perfectly constitutional (though not necessarily practical) to strip the Supreme Court down to the bare bones of its “original jurisdiction” – those few cases that the Constitution requires be heard by that body. Thus, all the outrage expressed by minds as conventional as Dan Thomassson’s is not nearly as well grounded in history as they suppose.

However, if Gingrich really wanted to address the emergence of dictatorial powers in the United States, he would be far closer to the mark if he focused on the executive branch, which he of all people ought to realize has grown into an imperial monstrosity dwarfing the global reach of George III. He seems quite happy to have such unbridled, historically repugnant, and increasingly murderous power vested in his own portly frame. Unless he is going to oversee the disassembly of the imperial presidency in order to return the Constitution to something more closely resembling the original balance envisioned by the framers, then the need for a significant check in the judiciary – even if it is itself an aberration – remains compelling. While Thomasson’s sin is that of historical over-simplification, his sin is far less serious than that of Gingrich, and may even have redeeming social value by helping to blunt Gingrich’s charge. Perhaps conventional minds have their uses after all.

Gingrich affronts the dignity of the Constitution by using its history for cynical political purposes while coveting the very dictatorial powers it most sought to prevent. In attempting to woo a conservative audience, Gingrich has revealed himself to be profoundly radical. Sinclair Lewis warned us that when fascism came to America, it would come wrapped in the American flag and carrying the cross. He might have added that it will also be reciting history books.

  1. Since this post was written, the Court’s decision in NFIB v. Sebelius – the Obamacare ruling – provided an interesting showcase.

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