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Gingrich and a Weaker Court: Focusing on the Idea Not the Man

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Newt Gingrich has made headlines, and angered people across the political spectrum, by arguing for the virtual destruction of the Supreme Court's power to strike down acts of Congress, the states, and the people. Most commentators have failed to wrestle with these views in a serious manner, perhaps because they have been articulated by someone the right probably doesn't want to nominate and the left doesn't want to take seriously. Also, some of Gingrich's political bombast, like arresting federal judges, certainly goes too far. But the arguments for a Court with limited or even no power of judicial review are 1) not ridiculous at all; 2) have been articulated by serious and prominent constitutional law scholars on the left; and 3) should be discussed publicly and honestly.

The current Dean of Stanford Law School, Larry Kramer, formerly of NYU (no bastion of conservative thought), as well as a prominent Chaired Professor at Harvard Law School, Mark Tushnet, who Elena Kagan famously recruited in return for the hire of several conservatives, have both argued that the Court's power of judicial review should be either severely limited or abolished altogether. Jeremy Waldron, also of NYU, and one of the most respected legal philosophers in the country, has echoed similar themes, also from a left wing perspective. All three are top-tier academics who have spent their careers writing about, teaching, and studying American constitutional law. Tushnet's book, aptly called Taking the Constitution Away from the Courts, articulates many of the same themes of Gingrich's campaign, albeit for different reasons.

In the interest of full disclosure, not self-promotion, I have a book coming out in February also arguing for limiting the Court's power of judicial review. My motivation, and what is at least part of what is driving Tushnet, Kramer, and Waldron, (and other left-wing academics) is that there is a strong argument that over time the Court is a major ally of the right, not the left. With the exception of a few years during the Warren Court, the Court almost never acts progressively. A serious debate about the Court would point out the great irony of conservatives ranting about a Court which usually helps their side much more than it helps the left.

A long time ago, the Court prevented Congress from abolishing slavery in the territories, did not allow Congress to end private racial discrimination in places of public accommodations (leading to generations of Jim Crow laws); and stopped Congress from prohibiting child labor, among many other anti-progressive actions by the Court (including stalling the New Deal). These decisions were eventually overruled but only at great societal cost.

The Court has been similarly anti-progressive recently. Without judicial review, public schools and universities could use affirmative action much more effectively, cities could prohibit all handguns and we wouldn't have the NRA funding litigation challenging every gun regulation that comes along (costing taxpayers large amounts of money), and the states and federal government could enact meaningful campaign finance reform. And, a weaker Court may have given us at least four years of President Gore.

Of course, the Court has provided the left some victories, on issues such as abortion, civil rights, separation of Church and State and free speech. But those decisions are rarely effective. Poor women still cannot get abortions in most parts of the country, Brown did not do much to end segregation until after the Civil Rights Bill of 1964 was passed, and Ten Commandments displays still adorn courthouses and other public buildings.

I cannot make a complete argument in this short space in support of the claim that anything other than the most deferential judicial review causes more harm than good. But, it is important to recognize that proposals to limit the Court's power have been embraced by some of this country's most prominent liberal constitutional scholars. These proposals include ending life tenure for the Justices (our Court is the only highest court in the world with judges with life tenure); allowing for congressional override of judicial decisions; and requiring a unanimous Court to overturn the decisions of other political officials.

We need a serious public debate about these proposals, judicial review, and the power of the Court. Although I would never vote for Newt Gingrich and find many of his political views distasteful, his ideas about the Supreme Court should be taken seriously. Hopefully his candidacy will spark a more realistic conversation about the Supreme Court from both the left and the right.