George Will Condemns Gingrich's 'Anti-Conservative' Assault on the Courts


In his latest syndicated column, George Will lays into Newt Gingrich's "anti-conservative" assault on judicial review:

He says that the Founders considered the judiciary the "weakest" branch. Not exactly. Alexander Hamilton called the judiciary the "least dangerous" branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive "judgment." That, however, is not weakness but strength based on the public's respect for public reasoning. Gingrich yearns to shatter that respect and trump such reasoning with raw political power, in the name of majoritarianism.

Judicial deference to majorities can, however, be a dereliction of the judicial duty to oppose actions irreconcilable with constitutional limits on what majorities may do. Gingrich's campaign against courts repudiates contemporary conservatism's core commitment to limited government….

Gingrich's unsurprising descent into sinister radicalism — intimidation of courts — is redundant evidence that he is not merely the least conservative candidate, he is thoroughly anti-conservative. He disdains the central conservative virtue, prudence, and exemplifies progressivism's defining attribute — impatience with impediments to the political branches'wielding of untrammeled power. 

Will reiterates a point I made in a column two months ago: Despite his disdain for the courts, Gingrich still expects them to intervene in areas where he thinks the government has exceeded its constitutional bounds, such as campaign finance regulation, gun control, eminent domain, and the individual health insurance mandate. Yet the court-intimidating reforms he recommends would discourage such decisions or render them ineffectual.

Will also cites the Gingrich quote I used at the beginning of that column, where he explains that he decided to run for president largely because of the 2002 decision (since overturned) in which the 9th Circuit deemed the phrase "under God" in the Pledge of Allegiance an unconstitutional government endorsement of religion. "Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead," Will notes. Gingrich also implicitly compared himself to Abraham Lincoln. Will opens his column with another illustration of Gingrichian grandiosity: "When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when, discussing Bosnia and Washington, D.C., street violence, he said, 'People like me are what stand between us and Auschwitz.'"

More on Gingrich's anti-court campaign here, here, here, and here. Damon Root on the virtues of "judicial activism" here and here.

Addendum: New York Times legal writer Adam Liptak quotes additional conservative criticism of Gingrich's court-sacking plan:

Michael B. Mukasey, who was attorney general under President George W. Bush, said he grew slack-jawed in amazement as he listened to Mr. Gingrich's argument that the elected branches should be free to ignore judicial decisions.

"It would lead us to become a banana republic, in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes," Mr. Mukasey said.  "That's not what we are."

Michael W. McConnell, a retired federal appeals court judge who was appointed by Mr. Bush and now teaches law at Stanford, said he was less concerned, but only because Mr. Gingrich's proposals are so far-fetched.

"If these things were actually done, it would be scary," he said. "Loose talk is not scary."…

Asked if Mr. Gingrich's proposed response [to Supreme Court cases he believes were wrongly decided] was problematic, [Mukasey] said, "Not any more than you get rid of termites by burning your house down."