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.