This column by ACRU Senior Legal Analyst Ken Klukowski was published November 20, 2011 on The Washington Examiner website.
Former House Speaker Newt Gingrich’s idea for checking judicial activism is a textbook case of historical revisionism that is strikingly similar to the court-packing scheme of liberal icon Franklin Delano Roosevelt.
Gingrich says Congress should just pass a law eliminating specific judgeships, presumably immediately ousting the activist judges currently filling those seats.
Gingrich lionizes an incident now regarded as profoundly troubling by constitutional scholars. When Thomas Jefferson replaced John Adams as president in 1801, the outgoing Congress created new federal courts and judgeships, which Adams promptly filled. The new Congress repealed the law and the judges were ousted.
Jefferson considered trying to impeach the entire Supreme Court. As Rep. James Bayard said at the time in objecting to Jefferson’s plan:
“He uses the Legislature to remove the judges, that he may appoint creatures of his own. In effect, the powers of the Government will be concentrated in the hands of one man, who will dare to act with more boldness.”
Gingrich’s idea would replace an imperial judiciary with an imperial presidency. Federal judges are confirmed for life, and, though Congress can create or abolish lower courts, judges already serving hold lifetime appointments.
This happens regularly. As recently as 2007, Congress eliminated a seat on the U.S. Court of Appeals for the D.C. Circuit. When Judge Raymond Randolph took senior status in 2008, his seat ceased to exist.
But Randolph could have continued as long as he wanted. And as a senior judge he still sits on cases today.
Jefferson argued that courts have no power to strike down any law passed by Congress, even if it grossly violates the U.S. Constitution. The Supreme Court rejected Jefferson’s theory of judicial inferiority, and in Marbury v. Madison declared the power of judicial review to invalidate unconstitutional laws.
This was consistent with the manifest intentions of the Constitution’s Framers (of which Jefferson was not one), and in fact was Jefferson’s view, too, before he was president and had an incentive to argue otherwise.
Gingrich’s idea is a modern version of FDR’s court-packing scheme to create six new Supreme Court justiceships, which FDR would then fill with supporters of his agenda.
FDR’s court-packing scheme failed miserably. Despite Roosevelt’s immense popularity, the American people energetically rejected this naked power grab that sought to subvert a coequal branch of government. Even his own Democratic Congress wouldn’t follow him.
While the Constitution creates the Supreme Court, Congress determines how many justiceships it has. It started with six, and has ranged from five to ten. Each time, eliminating a seat only occurs when a current occupant retires.
If Gingrich’s idea was legal, then, assuming Congress agreed, a president could abolish all lower courts, ousting all 980 federal judges, then recreate those courts and stack them with all his supporters.
President Obama and congressional Democrats could also oust John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito by eliminating their Supreme Court seats.
This would leave the Supreme Court with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. They would be the Supreme Court. How do you think Obamacare would fare before that Court?
Or abortion, Second Amendment gun ownership rights, cap-and-trade, religious liberty or campaign finance? Suddenly, this doesn’t look like a bright idea for conservatives.
To restore the Constitution, you can’t subvert the Constitution. An independent judiciary is essential to our constitutional system. The way to confine the courts to their proper role is to appoint the right people–principled constitutionalists — to the federal bench.
To do that, we need the right president in the White House.