The following is the first in a multi-part series on former Speaker Newt Gingrich’s speech to the Values Voter Summit
Presidential candidate Newt Gingrich just completed one of the most radical speeches ever delivered by a presidential candidate on the judiciary. Gingrich’s speech calls for a radical reshaping of our constitutional democracy, eliminating the judiciary’s power to make binding constitutional decisions. He promises to openly defy Supreme Court decisions he disagrees with, and pledges to intimidate judges who dare to part ways with the Constitution According To Newt.
Newt begins his speech with a rant about an unspecified 1958 Supreme Court decision which, he claims, wrongly created a doctrine of “judiciary supremacy”:
Imagine that, by a 5-4 vote, the Supreme Court decided that 2+2=5. Under the current theory, which the Warren Court promulgated in 1958, the only effective recourse would be either a) to get a future Supreme Court to reverse them, or b) to pass a constitutional amendment declaring 2+2=4. . . . This is an absurdity, foisted on us in 1958 by an historic lie. There is no judicial supremacy, it does not exist in the American Constitution.
What Gingrich labels “judicial supremacy” is merely the Supreme Court’s authority to be the final word on constitutional interpretation, and this authority was recognized long before 1958. Indeed, it was first announced by the Supreme Court’s landmark 1803 decision in Marbury v. Madison‘s declaration that “[i]t is emphatically the duty of the Judicial Department to say what the law is.” By questioning Marbury, Gingrich questions the very foundation of constitutional governance. If an independent judiciary cannot issue binding constitutional rulings, then the Constitution as a whole is meaningless because the only thing enforcing it is the willingness of government officials to comply with it completely voluntarily.
Additionally, Gingrich’s bizarre citation to the year 1958 turns out to be very revealing of what America would look like under Gingrich’s impotent Constitution.
A white paper published on Gingrich’s campaign website names Cooper v. Aaron as the 1958 case Gingrich finds so very offensive. In Cooper, Arkansas’ governor and state legislature decreed that the state was not bound by Brown v. Board of Education, and pledged to resist efforts to desegregate public schools. Eventually, they even called out the Arkansas National Guard to keep African-Americans from entering Little Rock’s Central High School. In a rare unanimous opinion signed by every single justice, Cooper held that lawmakers have no right to openly defy the Constitution in this manner:
[W]e should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
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 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. . . . Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.”
So when Gingrich lashes out against what he calls “judicial supremacy,” it is important understand exactly what he is saying. Newt believes that the governor of Arkansas was right, and the Supreme Court was wrong, about who had the last word in deciding whether African-American children can attend integrated schools.