One of the interesting things to come out of our recent interview with former Speaker Newt Gingrich was his position on judicial reform — an issue that is point 9 of his “21st Century Contract with America.”
When I asked Gingrich about the issue, the former college professor began by explaining:
The Judicial Reform Act of 1802 abolishe[d] 18 out of 35 federal judges. That doesn’t impeach them, it just says this court no longer exists, we are no longer going to fund it, go home. That was over half of all federal judges at that time.
So how would Gingrich suggest reforming the system today?
He continued:
One route would be for Congress … to use the 14th amendment definition of individual, and Congress could define an individual, for example, as beginning at conception.
That is clearly defined in the constitution. It’s not the court that defines it, it’s the Congress.
Another is for Congress to decide whether or not certain bills will even be heard by the court. So you could pass by law a bill that said nothing involving the sanctity of marriage between a man and a woman will be heard by the federal courts. Period. Just cut it out.
One legal expert I consulted agreed that the scope of Congress’s power under section 5 of the 14th Amendment is “a much-contested question.” Newt’s view that Congress could define “person” to include the unborn may well be a tenable position.
Gingrich continued, saying he would,
… take the most bizarre of judges and simply abolish their court. Tell them to go home. Those are the kind of steps. And I think they will lead to a very substantial national debate. There is nobody who has had the temerity now for almost 60 years to stand up and say that this is absurd.
No single person in America should have the right to rewrite the constitution, and we have created a 4:4 split in the court, so that Justice Kennedy becomes the one person constitutional convention, and whichever way he goes the constitution goes. That can’t possibly be the founding fathers’ intent.
Like much of what is in his new Contract, the judicial reform issue is not a new idea for Gingrich. Liberal websites have criticized him for these positions in the past. Additionally, he made some of these same points in an interview this summer with The American Spectator. (Note: This wasn’t something he always advocated. “I’ve gone from being critical of the judges to advocating a Jeffersonian response, which in some cases would actually abolish the judgeships,” he told The Daily Caller.)
The notion that Congress could abolish existing judgeships — and thereby remove from office the persons occupying those judgeships — strikes me as highly suspect. But even assuming that Gingrich is correct in arguing that Congress has broad authority to restrict the jurisdiction of the federal courts, the practical problem is that it is those same courts that would be deciding whether the jurisdiction-stripping provision is constitutional.
Gingrich also took issue with the Supreme Court, telling me:
This idea, that the Warren Court promulgated in 1958 or 59, that the Supreme Court is supreme over the over two branches, is absolute total baloney. The fact is that Alexander writes in the federalist papers that judiciary is the weakest of the three branches and will always lose to the elected branches.
The fact is Jefferson, when asked about the idea of a supreme court, said that would be an oligarchy.
Lincoln says in his first inaugural about the Dred Scott decision, the idea that nine appointed people could decide the constitution of the United States would in fact be eliminating freedom and subordinate the American people to nine appointees.
Gingrich is correct in noting the concept of the Supreme Court’s supremacy over the other branches in interpreting the Constitution is a modern invention. In fact, today is its 53rd anniversary.
Update: Another respected judicial expert emails to tell me that while he agrees with some of Gingrich’s intent, that
some of Gingrich’s potential solutions seem problematic. It is true that Congress has the power under Article III to establish the “inferior” courts underneath the Supreme Court. But since all federal judges “hold their Offices during good Behavior” and can only be removed through impeachment, Congress could not get rid of the judges assigned to particular courts even if those courts were eliminated. That seems like a pretty drastic solution to the problem of activist judges. The key to this problem is senators being more involved in vetting judicial nominees and not routinely approving those whose backgrounds, writing, and experience make it obvious that they do not intend to follow the limits imposed by the Constitution on the power of government.