Lest the implications of Gingrich’s assault on judicial independence haven’t entirely sunk in, the former speaker himself has helpfully singled out some court rulings that he believes crossed the line. Most notable of his list is the 1958 unanimous Supreme Court decision in Cooper v. Aaron, which required Arkansas, which was refusing to integrate its schools, to comply with the court’s unanimous 1954 ruling in Brown v. Board of Education that required the desegregation of schools. The court had no business, Gingrich contends, asserting its supremacy over state law. Of course, if Brown had desegregated only federal K-12 schools, it would have desegregated nothing, since there weren’t (and aren’t) any federal K-12 schools. But no matter: It was judicial overreach, Gingrich contends, pure and simple.
Gingrich insists that he understands there are three separate branches of government, but their larger purpose seems to elude him. The president and Congress are supposed to represent the will of the people, whom they serve by virtue of democratic election. In the broadest sense, they represent the principle of majority rule. The courts act as a check on majority rule by protecting the legal rights of minorities against the abuses of the majority. If the courts had been subjected to congressional overrule during the 1950s, when Southern segregationists chaired most key House and Senate committees, it’s not clear when or how the South’s schools would have been desegregated.
It’s no small irony that Gingrich wishes to assert congressional supremacy over the courts at the very moment when Congress, which is gridlocked by the presence of Tea Party Republicans, suffers from record-low support. (Congress’s approval rating is 11 percent in the latest Gallup poll.) The rehabilitation of the U.S. government needs to focus on those broken branches that are supposed to ensure majority rule — the presidency and the legislature. The Senate has become so burdened by rules enabling filibusters and anonymous holds that it embodies minority blockage more than majority rule. Our staggered schedule of federal elections means that lawmakers are often put in office by a much smaller and less representative electorate than the one that turns out in presidential-election years. The current House and Senate (save only those senators elected in 2008) have a mandate from a radically smaller majority (2006, 2010) than the one that put Barack Obama in the White House. By discarding the filibuster and senatorial holds, and by making House and Senate tenures conterminous with the president’s, we can regain majority rule — though that will be a blessing only if we can retain minority rights through a judiciary that isn’t answerable to the other two branches.
The other irony to Gingrich’s railing against judicial dictatorship is that it comes at the very moment when the Supreme Court is more conservative than it has been since it began upholding New Deal legislation in 1937. If President Obama and Senate Majority Leader Harry Reid (D-Nev.) embraced Gingrich’s proposals, they could haul the court’s five conservative justices before the Senate to justify their ruling in the 2010 Citizens United v. FEC case — and if Obama and Reid are still president and majority leader in 2013, and Nancy Pelosi is House speaker again, they could move to impeach and convict the offending justices and install ones who would reverse that ruling.
There is, of course, a saner and safer way to reverse Citizens United without imperiling judicial independence — pass a law or a constitutional amendment that negates it. But sane and safe isn’t the Newtster’s way. He wants to subpoena or arrest judges with whom he disagrees. He wants to arrest Barney Frank for authoring financial regulations. He wants to criminalize people who disagree with him politically. In that great gulag in the sky, Kim Jong Il is surely cheering him on.