Alleged historian and current GOP presidential hopeful Newt Gingrich wants to punish “activist judges” by hauling them before Congress, impeaching them, or simply abolishing their positions. (His definition of “activist” is basically any judge he happens to disapprove of.) He also thinks the Supreme Court should be overruled whenever Congress and the president both disagree with one of its decisions. As Jacob Sullum has explained, one of the many problems with this idea is that “Gingrich is essentially saying there is no judicial solution to unconstitutional laws.” Throughout American history, Congress and president have conspired together and produced constitutionally dubious pieces of hackwork. Under Gingrich’s plan, the Supreme Court would be totally powerless to stop them. So much for the Madisonian system of checks and balances.
To make matters worse, Gingrich can’t even get the facts right about the very Supreme Court decisions that he singles out for abuse. As Cato Institute legal scholar Roger Pilon observes in The Philadelphia Inquirer:
Gingrich's distortions continue. Kelo v. New London, for example, in which the court upheld the eminent-domain transfer of a woman's home to a private developer, was an egregious misinterpretation of the Constitution's takings clause. But far from frustrating popular government, as Gingrich asserts, the court was actually upholding the political branches.
In other words, Gingrich claims that he wants the courts to spend more time deferring to the elected branches of government, and then proceeds to attack a Supreme Court decision that is notorious precisely because the Court refused to take action against the misguided wishes of local officials. No matter what Gingrich would have you believe, the real problem with Kelo was judicial deference, not judicial activism. The fact that he may be unable to tell the difference between the two concepts is just one more reason to reject his harebrained scheme for the courts.