While the conservatives chafe at anything which might check "Fed independence"-read it Fed independence to serve the interests of banks rather than the American people-Newt Gingrich has a new idea that he calls "bringing the courts back under the Constitution."
"These include calling judges before Congress to explain their decisions, impeaching judges or eliminating courts that consistently get the Constitution wrong, and limiting the applicability of Supreme Court decisions that distort the Constitution." (pg. A19, today's Wall Street Journal)
These ideas have been criticized as violations of the Constitution's separation of powers. Of course the Wall Street Journal editorial page is here to tell us that these criticisms are "overblown." What else is new. This is the function of the WSJ editorial page-to defend indefensible Republican positions. They are essentially an organ of the GOP, it's Ministry of Information.
Curt Levey who wrote the article-he is an attorney and director of the Committee for Justice-does a good job of using examples that sound more palatable. So he points out that Abraham Lincoln chose to ignore the Dred Scott decision.
In his inaugural address Lincoln said, "in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard."
I have to hand it to Levey-that is brilliant on his part because it may well disarm some skeptical readers. After all, it is all well and good to speak of "courts that consistently get the Constitution wrong" but isn't that after all a subjective argument? There isn't the universal agreement on such a charge that we can't but suspect that what Levey and Gingrich are really after are court decisions they don't like-ie, liberal decisions that they will characterize as "judicial activism."
But of course the Lincoln example is a great bait and switch as-while it's not the sort of recent case they have for decisions that get the Constitution-readers of a more liberal persuasion may come away less sure that it's such a bad idea.
And there's the rub. If their goal is to have certain decisions-or eliminate certain lower courts-that make judgements unpalatable to conservative Republicans they may be hurting their cause even. Today this is hardly the Warren Court. The conservatives have a 5-4 lock that holds good on many important decisions-and may be their ace in the whole in overturning the individual mandate,
In fact it's liberals who in recent times have had the most decisions to hate. There was the recent verdict that declared corporations are people and have the same legal rights-the free speech of an individual and the deep pockets of corporate lobbyists are one the same level.
There was the recent defeat of the women's class action suit from Walmart where the Court neutered their suit by claiming it somehow couldn't be joint but each litigant by herself had to fill a brief locally, obviously largely shielding Walmart from any damages.
There was the 2000 decision where the Court elevated George W. Bush to the presidency. This is the problem. I doubt any of these cases is what Newt and Levey have in mind when they speak of courts getting the Constitution wrong.
One has to wonder if this would just lead to arbitrary decisions based on the peculiar ideology of a particular Congress or Executive. I guess what you can say for them is that if they're agenda is to tip the scales further in the direction of Right wing Republicans, they are not necessarily doing it at an opportune time. At this point the GOP has only the House, with a Democrat Senate and White House.
You could argue that the Supreme Court is their one bulwark. Of course these new powers that Newt has in mind are not just directed against the SJC but other lower Federal courts. To be sure, at present 60 percent of all Federal judges are Republican appointees.
The trouble is this: Levey argues that this wouldn't decrease judicial independence. I don't see how that can be so. Who exactly would get to decide a court decision was wrong and therefore should be ignored? Much less who would decide to eliminate a court? It may be that certain lower courts have displeased the conservatives and that's their target.
Overall, Newt's first suggestion may be legitimate-calling judges before Congress. Everyone from the Fed Chairman to the highest ranked officers in the military speak before Congress and why not Supreme Court judges?
However I don't see how Congress can abrogate the right to unilaterally deciding a court got a decision wrong or routinely gets it wrong and so certain judges are to be impeached and certain courts closed. That would seem to make the legislative branch too powerful relative to the judicial branch and indeed would abrogate its independence.
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