Self-inflicted foot thrust

Gingrich ramps up objections to judicial branch’s power

Newt Gingrich is giving fair warning to judges and courts across the country: If he becomes president, the judiciary won’t reign supreme.

The former House Speaker and current Republican presidential front-runner convened a conference call with reporters on Saturday to expand on his call for Congress to subpoena judges or even abolish courts altogether if they make wrong-headed decisions. Those arguments from Gingrich at Thursday’s debate in Iowa drew scrutiny and criticism from his rivals.

Far from distancing himself from the issue, however, Gingrich said he was “delighted” that it came up and directed reporters to a 28-page white paper on the judiciary on his website.

Then, in what amounted to a 35-minute seminar on constitutional history, Gingrich argued that the judicial branch has grown far more powerful than the nation’s founders ever intended and said it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided.

He cited four examples in presidential history, including Abraham Lincoln, whose administration, Gingrich said, refused to enforce the Dred Scott decision by the Supreme Court on slavery and then actively flouted it by emancipating the slaves with an executive order.

“They just ignored it,” Gingrich said. He said the principle applied most recently to the 2008 Supreme Court decision finding that the Bush administration had exceeded its constitutional authority in handling suspected terrorist detainees at Guantanamo Bay, Cuba.

“A commander in chief could simply issue instructions to ignore it, and say it’s null and void and I do not accept it because it infringes on my duties as commander in chief to protect the country,” Gingrich said of the Guantanamo ruling.

Gingrich, a former history professor, also stood by his statement that Congress could abolish certain courts altogether, although he clarified that it should be a last resort to counteract judicial overreach.

“There are many remedies, there are a number of steps,” he said. “I’m not suggesting that’s the only recourse or even should be the primary recourse. There are a number of in-between steps.”

He added later in the call: “I think it’s important to say, that’s the last choice, that’s the last place you’d want to go.”

When pressed as to whether a president could ignore any court decision he didn’t like, such as if President Obama ignored a ruling overturning his healthcare law, Gingrich said the standard should be “the rule of two of three,” in which the outcome would be determined by whichever side two of the three branches of government were on.

He also indicated it would be rare for a president or Congress to challenge or ignore a court decision, and said in more than 99 percent of cases “you want the judiciary to be independent, you don’t want the Congress or anybody to be able to rewrite cases, per se.”

Another branch would step in, Gingrich said, when a judge or a court makes a decision that is “strikingly at variance with America.”

“I think it’s important to have a discussion: Do we have a balance of power between the three branches, or do we have a judicial supremacy in which they can dictate to the rest of us?” he asked. “I think the country will overwhelmingly conclude you do not want a court which is capable of dictating.”

Newt’s a man of ideas. Most of them are bad.

The federal judiciary is the smallest of the three branches of government. They don’t make law, they interpret it. They don’t control their budget and other than bailiffs they have no power to enforce their rulings. The controversial part of their job is interpreting the U.S. Constitution.

Their rulings have been inconsistent and often frustrating, and occasionally newer courts have reversed earlier rulings. But with rare exceptions their rulings have been obeyed. If the executive and legislative branches disagree with the judiciary they can amend the Constitution. If a judge abuses his/her power he/she can be impeached.

In a nation ruled by law, it is only natural that judges will have the final say. Our system works. Not perfectly, but it works.

One last thought – if you look through all the SCOTUS rulings where they ruled a law unconstitutional, they were acting as a brake and/or limit on government power. They didn’t tell the other branches of government what to do, the court told them what NOT to do.

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30 Responses to Self-inflicted foot thrust

  1. DeniseVB says:

    There was a reason we gave federal judges life terms, which I think Newt wants to end? We should have elections then?

    In my lifetime, they’ve all been politically motivated appointments anyhow. It would become truly three branches of the people, for the people then? Perhaps young, and great, lawyers can truly aspire to reach the top of their field without the ass-kissy stuff 😀

  2. Rocky Hussein Squirrel says:

  3. 1539days says:

    Ironically, Newt is responsible for the problem.

    myiq is right. The courts can only act on established law. Since Newt wants to pass Congressional legislation for every little thing, (aka social engineering) the courts have free reign to rule on it. The solution is to make as few laws as necessary, make them clear and concise and the courts have little to argue with.

    I’ll give Newt this. At least he produces scholarly arguments. Has “Professor” Obama produced anything but greenhouse gases?

    • yttik says:

      Ironically, Newt appears to be in agreement with President Obama. While campaigning, Obama promised he would not sign any presidential signing statements. At last count he had signed dozens of them.

    • DeniseVB says:

      “Professor” Obama has done nothing to convince me he’s for anything but “Professor” Obama. It’s in his history, but the media vetting failed us on that 😦

  4. votermom says:

    OT: 436 killed from flash floods & landslides in southern Philippine due to Typhoon Sendong.
    For those with a few bucks to spare, here is the Philippine Red Cross link.

  5. yttik says:

    I don’t understand the cry that judges have too much power or are “legislating from the bench.” I’ve read quite a few SC rulings and like myiq said, they always seem to be about limiting government power.

    We already have a system of checks and balances for the SC. Congress can always rewrite the law to bring it in line with the Constitution or they can amend the Constitution entirely. We can even impeach judges.

    One thing I don’t like about the R candidates, only Sarah Palin had a good grasp about the limits of executive power, the will of the people, and the importance of our system of checks and balances. Perry, Romney, and Newt have all bragged about how their executive power can trump congress and the SC. That’s not true, this is a democracy, we don’t have kings here. To be honest with you, that means none of them are genuine conservatives. You can’t be talking about upholding our Constitution and shrinking Gov, while bragging about expanding executive power in direct violation of our Constitution. Well you can, but that doesn’t make you a conservative, it makes you a hypocrite.

  6. Dario says:

    I’s an interesting point that Newt is advancing. He’s right that if he were to ignore the Supreme Court, it would not be the first time. That the House did not bring the articles of impeachment is more important than ignoring the Supreme Court. In the current environment, where congress has delegated its powers to the executive almost 100%, and with people like Pelosi, I could see him getting away with it.

    I’m not sure that was a self-inflicted wound. Many Americans will agree with his point of view, and if enough voters want to throw out Obama from the WH, the issue may not be sufficient to vote against Newt. Americans have the government they deserve.

  7. Cute. Go to and search “let it snow” (without the quotes).

  8. timothy says:

    Maybe my anyone but b o stance has jaundiced my thinking, but i won’t have an issue voting for Newt. I prefer him to every other Repug like Ron Paul 95% of the time but he scares me the other 5%. Only way I could see sitting home would be Romney. just do not like the guy. i don’t really like Santorem or Bachman but neither makes me uncomfortable to listen to the way mittens does.

    • DandyTiger says:

      You’re probably seeing the bought and paid for look and feel we see with Obama. They’re the same. Owned by the same people. Might as well change them just to mess with the system a bit, but don’t expect any difference in policies, as was the case between dubya and Obama.

      • timothy says:

        On one point I will disagree. I do not believe Newt hates America and the common folk. perhaps some disdain because he thinks he is smarter but not hate.

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