Curbing the courts

Judiciary should recognize the limits of its power

Newt Gingrich doesn’t say things just to be popular. In fact, he gets in trouble quite a bit for saying things that are decidedly politically incorrect.

So when he suggested at a recent Republican presidential debate that wayward judges and courts should have their positions abolished by Congress, he probably wasn’t just playing to the crowd.

But he might as well have been. He knew he’d get applause, which he did.

Conservatives are fed up with judges who legislate from the bench and who consider the Constitution to be a “living”
document that bends to the
popular will of the time.

Indeed, when was the last time you saw a court ruling you thought was courageous? It doesn’t seem to happen much anymore; even the courts seem to put their fingers up to test
the political winds these days, when the law might prescribe a different result.

But if you want to make that even worse – if you want judges to be even more political than they already are – then you’ll love Newt Gingrich’s ideas for holding judges more accountable.

Politically, not legally.

Gingrich suggests giving Congress subpoena power to
interrogate judges whose
rulings they disagree with. He also recommends eliminating judgeships and even whole courts for “bad” rulings.

Like Gingrich and many
others, we worry that the courts have conferred upon themselves far too much power – and that we risk sliding into a black-robed oligarchy. Some courts have even taken it upon themselves to determine whether constitutional amendments are “constitutional.” Huh? Constitutions are the ultimate law of the land, and are social contracts we make with each other. They are what we say they are, they say what the people want them to say. Some judges would have it be otherwise, which is plainly frightening.

When the courts appropriated the sole discretion to interpret the Constitution in Marbury v. Madison, they donned a cloak of infallibility that others are starting to draw back.

Still, the rule of law is what binds a civil society and makes peaceful resolution of conflicts the norm. And having judges who are accountable to the law – and not to political whim – is an irreplaceable component of that.

Injecting yet more politics into the court system is a spectacularly horrendous idea.

If conservatives don’t like
it when judges legislate from
the bench or otherwise act
politically in their rulings, rest assured the courts would be a thousandfold more political with Congress looking over their shoulders and threatening them with their jobs for ruling the “wrong” way.

Incidentally, with a conservative majority in Washington,
getting rid of liberal judges might be a tasty thought. But it can work both ways. Would
conservatives like that?

What we’d rather see is a system in which the courts did a better job of policing themselves. Is anyone keeping score, for instance, of the number of times a judge is overturned on appeal? Or how flawed his or her powers of reason seem to be? Is there enough counseling and evaluating? Shouldn’t there be performance metrics in order to weed out the incompetents?

You know, they do take an oath to uphold the Constitution and such. Who’s holding them accountable for that? Yes, they can be impeached – but it happens rarely enough that, absent a popular uprising, it can’t be relied upon to thin the herd.

Judges can reflexively stand on the separation of powers and the need for an independent judiciary – and to this point, we stand with them. But while they must be accountable primarily to the law, they also must navigate the real world. And the audience’s fervent reaction to Gingrich’s broadside against the courts should be cause for alarm and introspection.

If courts don’t respect the limits of their power – and don’t uphold the Constitution, instead of upholding what they wish it said – then the social contract can always be rewritten.

Regardless of what they think.

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