Gingrich’s most lurid evidence that courts are “grotesquely dictatorial” is a Texas judge’s aggressive decision concerning religious observances at high school functions, a decision a higher court promptly (and dictatorially?) overturned. Gingrich’s epiphany about judicial tyranny occurred in 2002, when a circuit court ruled unconstitutional the Pledge of Allegiance phrase declaring America a nation “under God.” Gingrich likened this to the 1857 Dred Scott decision that led to 625,000 Civil War dead. The Supreme Court unanimously overturned the circuit court’s “under God” nonsense.
So, Gingrich is happy? Not exactly. He warns that calling the Supreme Court supreme amounts to embracing “oligarchy.”
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.
Logically, Gingrich should regret the dictatorial Supreme Court decisions that have stymied congressional majorities by overturning portions of the McCain-Feingold campaign finance legislation and other restrictions on political speech.
Logic, however, is a flimsy leash for a mind as protean as Gingrich’s, which applauds those decisions — and the Kelo decision. In Kelo, the court eschewed dictatorship and deferred to the New London, Conn., City Council majority that imposed a stunning abuse of eminent domain. Conservatives were appalled; Gingrich, inexplicably but conveniently, says he is, too.
Gingrich radiates impatience with impediments to allowing majorities to sweep aside judicial determinations displeasing to those majorities. He does not, however, trust democratic political processes to produce, over time, presidents who will nominate, and Senate majorities that will confirm, judges whose views he approves.