REINING IN THE IMPERIAL JUDICIARY

December 22, 2011

In 2005, Congress barred our terrorist enemies from appealing their wartime detention to the civilian courts. The Detainee Treatment Act (DTA) was an eminently reasonable statute. The handling of captives in wartime had always been exclusively an executive-branch prerogative — war being a political and military exercise, not a litigation. The framers committed all aspects of warfare to the political branches, accountable to the people whose lives are at stake, not to the politically insulated judiciary.

Congress acted comfortably within its powers: The Constitution makes it master of the federal courts’ jurisdiction. Indeed, other than the Supreme Court, all federal courts are creatures of statute — the Constitution does not require their existence. Yet, in a nod to the ambiguities of terrorist warfare, in which jihadists do not operate openly as honorable soldiers, the DTA even provided a narrow avenue of judicial review. That made our enemies the first anti-American belligerents in history to be given systematic access to American people’s courts in wartime — something the World War II–era Congress would not have tolerated, and that the Supreme Court of that time actually warned against.

Not good enough, pronounced the Supreme Court’s transnational-progressive majority. The justices ignored Congress and licensed the lower courts to entertain the enemy’s cases anyway. Soon after, they invalidated the military-commission war-crimes trials the commander-in-chief had ordered — even though commissions had been an executive prerogative since the Revolutionary War, and even though Congress, in the DTA, had implicitly endorsed them.

The Court also implored Congress to do more — to intervene and explicitly resolve the question of how detainees should be handled. “Turns out they were just kidding,” as Justice Scalia would later acidly say of the leftist justices behind this string of detainee rulings. After Congress did exactly as the justices had asked, the Court again thumbed its nose, ignoring the legislature’s unambiguous directive that the lower courts lacked jurisdiction to entertain the detainees’ appeals. In a ruling that defied both logic and centuries of Anglo-American jurisprudence, the Court held that aliens captured outside the United States — aliens whose only connection to our body politic was to wage a terrorist war against us — were somehow vested with a constitutional right of access to our courts to challenge their detention.

These rulings are not simply legal outrages. They deny the sovereign power of the American people to enforce their natural right of self-defense — all for the benefit of foreign jihadists who target civilians for mass murder. Nor are they singular excesses. In the last three-quarters of a century, there has been an explosion of juristocracy, of politically unaccountable judges’ nullifying the American people’s democratically enacted choices. The courts have not merely been an advocate for our wartime enemies but a partisan in the culture wars — inventing abortion rights; eroding the bedrock principle of equal protection before the law; cossetting heinous criminals; banning public expressions of religious reverence; protecting the publication of child pornography while curbing political speech; cherry-picking international law as needed to reverse popular self-determination; and so on.

For daring to pronounce this state of affairs a subversion of our constitutional order, and for proposing to rein in the imperial judiciary, Newt Gingrich has been derided as “outrageous” — that’s actually one of the tamer descriptions.

One could argue that the former Speaker and current GOP presidential hopeful has himself to blame for that. “Outrageous” is one of the critiques applied to aspects of Gingrich’s proposal to rein in the judiciary by Michael Mukasey, who served as President Bush’s last attorney general. A widely respected former federal judge and conservative thinker, Judge Mukasey actually approves Gingrich’s overarching aim. “There’s a lot in there that’s good,” he said of the Gingrich plan in a Fox News interview. “Take a red pen to the parts that are bad, stick with the parts that are good, and run on it.”

In a sadly predictable drama, the media and former Speaker are playing to their worst tendencies: The media is hyping the bits that are red-pen-worthy, and Gingrich is vigorously defending what is not only indefensible but pointless.

Consuming all the oxygen, and thus distorting the proposal, is the sideshow prospect of hauling federal judges before Congress to compel them to explain particularly atrocious rulings. That this would violate separation of powers is obvious. The worst aspect of this tempest, though, is its pointlessness. Judges always explain their rulings in written opinions. The problem is that the explanations depart grossly from the original understanding of the Constitution and the modest role of judges in a free society — not that we don’t know what the explanations are and can’t grasp them absent some theater of the absurd.

More dismaying is the caricature of a serious idea: repealing some federal courts. This has been reported, with no small contribution from campaign bombast, as the notion that, because the Ninth Circuit federal appeals court (taking the most notorious example) issues a disproportionate number of what Mitt Romney might call “zany” rulings, we should just get rid of the Ninth Circuit — Congress created it, so Congress can eliminate it. You get the sense that Gingrich would have us proceed forthwith from bad ruling to pow! no more court.

That is not a realistic rendering of what is at issue. It is as unserious as would be the suggestion that anyone thinks we should move from disagreement with a bad presidential decision to impeachment, the drastic remedy invoked exactly twice in 225 years of constitutional governance. In the real world, there are many steps between the extreme we have now — sheep-like acquiescence to a continuing usurpation of power — and the extreme of making the offending judges disappear.

For example, the political branches may enact laws that deny the courts jurisdiction to hear certain kinds of cases. If the courts ignore these bars (as they did in the detainee cases), the political branches may enact laws reversing those decisions. If the courts persist in their obstinacy, theorizing that they are vested with the final power to divine the Constitution’s meaning (a power found nowhere in the Constitution), the political branches could enact a law, or propose a constitutional amendment, that explicitly empowers them to overturn decisions of the Supreme Court. Or they could simply refuse to enforce court rulings — the courts’ impotence in unilaterally imposing their judgments having been the principal reason Hamilton presumed the judiciary to be “the least dangerous” branch. Congress, moreover, could revisit the dubious tradition that judges can be impeached only for personal corruption, and not for persistently, egregiously overstepping their authority.

This kind of change would also require the political branches to look in the mirror. There could be no judicial usurpation absent cravenness on the part of elected officials. Presidents and lawmakers routinely punt the hard calls to politically insulated judges: enacting vague, elastic laws, relying on the courts to do the tough legislating — and then complaining about the way they do it. If we really want judges to limit themselves to applying law, rather than making it, we need to demand that the real lawmaking be done by the political actors we hired for the job.

If all else failed, could we eliminate defiantly willful courts? Of course we could. We are, in the end, a political society, and repeal, like impeachment, is a political remedy available in dire circumstances. But you don’t go from zero to DEFCON 1 over a bad ruling or two.

If the public were sufficiently provoked by judicial imperialism to pressure elected officials into using the less draconian tools available, behavior would change, and we’d have no cause to discuss eliminating courts as a punitive measure. Then we could explore an equally pertinent question arising from statist, rather than judicial, excess: Should we eliminate some federal courts to improve our republic? That is, do we have too many federal courts because we have too many federal laws — because Leviathan does too many things that should either be done by the states or not be done at all?

Gingrich deserves credit for forcing the vital issue beneath all of this, an issue that every GOP candidate ought to address. The Supreme Court has long purported to be the final authority on what the law is. It was one thing to take that position when the judges had a modest understanding of their role: namely, to resolve cases between litigants, without the grandiosity that would impose those rulings on every American. As Gingrich points out, however, for the last half-century, the Court has regarded itself as a permanent constitutional convention. This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick.

So the question for the candidates is, who is the sovereign? Who gets the final word on what the law is? Hint: The first three words of the Constitution are not, “We the Judges . . . ”


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.