The Ball's in Your Court

At the December 15 debates in Sioux City, Iowa, nominal frontrunner Newt Gingrich argued that the “courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” Showing the discipline and moderation for which he has long been known, Gingrich followed up with assertions that judges that issue First Amendment rulings he disagrees with should be arrested and impeached and that he would ignore court rulings that didn't suit him.

Many of the proposals deriving from these intemperate critiques are dangerously radical, others inadvertently reasonable. But what is strange about them is that they all assume a liberal federal judiciary that hasn’t existed for decades. More than forty years later, Republican elites seem to not to have heard about Earl Warren’s resignation from the Supreme Court.

While the federal courts have not been bastions of progressive constitutionalism for a long time, conservatives have had rhetorical success in using the very unusual period in which there was a liberal median vote on the Supreme Court to portray themselves as advocates of “judicial restraint” while accusing liberals of supporting something called “judicial activism.” The idea that conservatives favor a deferential judiciary retains a significant hold on the punditry even as the federal courts have become more conservative and no more deferential than the Warren Court. After the Supreme Court’s profoundly embarrassing and cynical intervention into the 2000 presidential election, The New Republic's legal affairs editor Jeffrey Rosen wrote that “Conservatives have lectured us for more than 30 years about the activism of the Warren and Burger Courts. Those tinny and hypocritical lectures are now, thankfully, over.” This assessment, alas, was too optimistic.

It is striking that, in the midst of his broadside against the courts, Gingrich mentioned only one decision: a nearly ten-year-old ruling by the Ninth Circuit Court of Appeals holding that requiring students to recite the Pledge of Allegiance (including the phrase “one nation under God”) in public schools violates the Establishment Clause of the First Amendment. The decision—which was later unanimously overturned by the Supreme Court—has had no effect on pledge recitals whatsoever. That Gingrich is still trying to milk outrage from it tells us something about the general direction of the courts.

It’s also worth noting that, rather than arguing that the Ninth Circuit was misreading the Constitution, he argued that the Court was misreading “the American people.” Why the job of the federal courts is to do the latter rather than the former, Gingrich didn’t say, and it should make complaints about “judicial activism” seem hollow.

That these alleged liberal “outrages” are isolated and not very important whether one agrees with the critiques or not, however, hasn’t stopped Republican nominees from advancing some radical attacks on the federal courts. Gingrich has praised the abolition of circuit courts, court-packing and ignoring Supreme Court rulings. Rick Santorum has also argued that the relatively liberal Ninth Circuit Court of Appeals should be abolished. Michele Bachmann and Ron Paul have advocated removing the court’s jurisdiction over issues where courts have acted to protect rights that Republicans would prefer not be recognized.

None of these radical proposals would necessarily be illegal—Article III gives Congress much more power over the federal courts than is generally understood, and Gingrich is correct that all of these actions—save just ignoring federal court rulings—have historical precedent. While none of these proposals would violate the text of the Constitution, however, they would be contrary to longstanding constitutional norms that exist for good reason. Crudely political manipulations of the composition and jurisdiction of the federal courts benefit nobody in the long run, and are likely to inhibit the courts from protecting the rights of those who are underrepresented in other political channels (which to contemporary Republicans, of course, is a feature rather than a bug).

Admittedly, one candidate has joined the anti-court crusade which a proposal which is actually defensible. Rick Perry has argued, and asserted again in the debate last week, that there should be term limits on federal judges. Like progressive legal scholar Sanford Levinson, I agree that this would be a good idea. It would work against random fluctuations in the membership of the court that cause the Supreme Court not to reflect election results. It is worth noting that the most obvious recent beneficiary of this has been the Republican Party, whose nominees have recently dominated the Supreme Court in large measure because Richard Nixon got four Supreme Court appointments in his first term and Ronald Reagan also got four, while Jimmy Carter got none and Bill Clinton two.

This returns us the question of why attacks on the federal courts have been so common in the Republican primary, when in fact the Rehnquist and Roberts Courts have largely been bonanzas for Republican interests. The four judges praised by most of the Republican candidates in the Iowa debate are not remotely deferential to the political branches. If there is any case that represents an “arrogant misreading” of the American public, it is the Citizens United decision. The public mood may have turned against corporate America, but the Roberts Court remains its best friend. And, of course, the same Republican candidates who have spent a great deal of time decrying “judicial activism” are also urging the Supreme Court to strike down the centerpiece legislation of Barack Obama’s first term on the basis of an extremely dubious legal argument—that the Commerce Clause allows the federal government to regulate "activity," but not "inactivity."

Not only are many of the Republican attacks on the courts potentially dangerous; they also reflect a bizarre world in which Republican-dominated federal courts are seen as bastions of liberalism. As on so many other issues, wealthy, privileged Republicans have the remarkable ability to be permanently aggrieved no matter how much they’re winning.

Comments

I am a pretty liberal lawyer (though not a federal court litigator) and while there have not been the gains in civil rights through the courts in the last 20 years, the federal district and appellate courts are not nearly as regressive as the Supreme Court. The endangered species act, labor laws, separation of church and state, consumer regulatory and immigration laws have not been eviscerated in Federal appellate courts. Some provisions have been pared back. But most federal judges are pretty good and most of those judges respect precedent and the rule of law. There are some cretins in the southern districts but other district court judges can and do ignore them. There are some scattered bad political apples - the 9th has the torture lawyer as a judge - but a majority of the federal judges are decent. The problem is that Republicans name their worst political hacks to the Supreme Court.

One small problem with the author's thesis "the federal courts have not been bastions of progressive constitutionalism for a long time."
Yet, in not being "progressive," we have the Supreme's accepting the federal takeover of the entire nation's health care. Doing zip about the "abortion mills" like Gosnell's clinic or putting a check on "Executive Privilege" which has truly ("I have a pen and a phone") has truly gotten out of hand.
As one columnist noted: "Obama is the President Nixon wanted to be."
When both Democrats and Republicans are "grousing" about the Supreme Court, they're probably doing a reasonable job.

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