Sacking the Courts

Perry and Gingrich recklessly disregard the importance of judicial review.

Why is Newt Gingrich running for president? Two words: "under God." 

I exaggerate only slightly. "One of the major reasons that I am running for president," the former House speaker said at this month's Value Voters Summit, "is the 9th Circuit Court decision in 2002 that 'one nation under God,' in the Pledge of Allegiance, was unconstitutional. That decision to me had the same effect that the Dred Scott decision extending slavery to the whole country had on Abraham Lincoln." 

Let us pass over Gingrich's comparison of himself to the Great Emancipator and only briefly contemplate whether excising two words from the Pledge of Allegiance would be an injustice on the order of systematically denying people's rights because of their skin color. Gingrich's main point is that the 9th Circuit's ruling (which was reversed long before he entered the race for the Republican nomination) illustrates the need to punish judges for making decisions he does not like. Such miscreants should be called before Congress to explain themselves, Gingrich says, and if they cannot do so satisfactorily, their courts should be abolished.

Although Gingrich's plan for confronting the judiciary is especially aggressive, it reflects familiar conservative complaints about "activist judges who tell us what is right and wrong and deny us the right to live as we see fit," as Texas Gov. Rick Perry, another Republican presidential contender, puts it in his 2010 book Fed Up! Critics like Gingrich and Perry recklessly disregard the importance of court-enforced constitutional limits, seeking to undermine judicial review in ways they themselves would come to regret. 

Gingrich and Perry surely are right that judges can be wrong. It is difficult, for example, to reconcile the original understanding of the Constitution with the Supreme Court's decisions concerning abortion and the separation of church and state. In his book, Perry also complains about the Court's interference with the death penalty, its regulation of congressional districts, and its nullification of the Texas ban on sodomy. He worries that it might one day require legal recognition of gay marriages. 

All these examples involve second-guessing decisions by legislators. But that does not mean Gingrich and Perry think the courts should automatically defer to the people's elected representatives. 

Gingrich faults the Supreme Court for approving the use of eminent domain to transfer property from one private owner to another in the name of economic development. Perry criticizes it for encouraging Congress to believe its authority to regulate interstate commerce covers nearly any measure it decides to pass—such as the individual health insurance mandate that he and his fellow Republicans want the Court to overturn. Gingrich praises the Court for striking down campaign finance regulations that impinged on freedom of speech. Perry praises it for striking down local gun laws that impinged on the right to keep and bear arms. 

In these and other cases, Gingrich and Perry, like many conservatives, expect the federal courts to enforce constitutional restrictions on legislative power. But how well can they do that job if, as Gingrich recommends, Congress responds by defunding them or simply by declaring its legislative acts unreviewable? How strong a bulwark of liberty will the judicial branch be if, as Perry suggests, a two-thirds majority of Congress can override the Supreme Court's decisions? 

Despite all the dire warnings about judicial activism, the Court's recent record suggests it does not have much strength to spare. According to an Institute for Justice report released last month, the Court struck down just 0.65 percent of federal laws and just 0.045 percent of state laws enacted between 1954 and 2002. "We suffer not from rampant judicial activism," authors Clark Neily and Dick M. Carpenter conclude, "but rather from too little judicial engagement." 

Perry complains that "democracy" is "trumped by nine unelected judges," while insisting that the Supreme Court "should be steadfast in its commitment to the preservation of liberty." But unrestrained democracy is inconsistent with liberty, which is why we have a Constitution.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.