NJLJ - Gingrich plan threatens judicial independence

The New Jersey Law Journal editorial board, in a rare statement addressed to a candidate for office, sharply criticizes former Speaker Newt Gingrich. - GWC
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Triumph or Tragedy?

The Norman Rockwell painting of an African-American child escorted to school by a federal marshal is an iconic image of the shame of segregation and the triumph of justice, of federal supremacy over local intolerance as the judgment of Brown v. Board of Education was enforced in Little Rock, Arkansas. Repudiating the defiance of segregationist Gov. Orville Faubus, the Supreme Court declared inCooper v. Aaron, 358 U.S. 1 (1958):

"Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as 'the fundamental and paramount law of the nation,' declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that 'It is emphatically the province and duty of the judicial department to say what the law is.' This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

But that moment of triumph — of finally realizing the power of the post-Civil War 14th Amendment — was not triumph but tragedy, according to presidential hopeful Newt Gingrich. In Position Paper No. 9 of his "21st Century Contract with America," he writes that he would reverse what we have all considered to a fundamental element of our constitutional system — judicial review:

"In the fifty-three years since Cooper v. Aaron, the Supreme Court has become a permanent constitutional convention in which the whims of five appointed judges have rewritten the meaning of the Constitution and assigned to themselves the last word in the American political process. Under this new all-powerful model of judicial supremacy, the Supreme Court — and by extension the trail-blazing Ninth Circuit Court and even some bold or arrogant district judges — federal judges have been able to redefine the Constitution and the law unchecked by the other two co-equal branches of government."

We disagree. The Constitution, for better or for worse, means what the Court says it means. The principle of judicial independence demands that we accept that precept, even when we think a Court decision is wrong. In such a circumstance the Constitution itself provides a narrow, rarely achievable mechanism for amendment.

Politics too provides a legitimate route to change: a president may appoint and the Senate may confirm as judges men and women who will revisit questions previous confronted. We recognize the frustrations of this system. As readers of this page know well, we have often disagreed with Court decisions. But while we criticize the Court, we will defend its independence against attacks from either end of the political spectrum. We wish, most likely in vain, that all of the candidates in 2012 would do the same.

December 17, 2011