If a belch is accompanied by citations, should we take it seriously?

Newt Gingrich almost never meets a problem that can be fixed with anything short of a fundamental change in the operation of the Republic. His is a disposition that can only be called conservative through the lengthening political kaleidoscope of the last three decades, during which — and this is the key to understanding our current state of affairs — national Republicans have gradually ascended their own version of the Ivory Tower, one so lofty even its foundations float high above in the twisted nether, as Democrats have increasingly embraced pragmatic pursuit of near-consensus goals. (These pursuits go unchecked by any sort of equally pragmatic opposition more disposed to worry about unintended consequences, you know, the office that used to be held by conservatives.) But lofty ideals must at least be ideals, with some hint of reason, not simple tribalism surrounded by quotes from the Federalist Papers.

A recent Gingrich target is the authority of judges to pass on the meaning of the Constitution, with only the prospect of constitutional amendment, impeachment, and new appointments to restrain them. Among the sources of Gingrich’s outrage is a now-void ruling by the Ninth Circuit that Congress acted unconstitutionally in the 1950s when it added the words “under God” to the Pledge of Allegiance. Yes, one of the chief arguments for changing the modern federal order is Gingrich’s dislike of a Ninth Circuit decision that was overruled by the Supreme Court. As Dahlia Lithwick points out, if one dislikes the Ninth Circuit’s opinion, that is was overruled is evidence that the judicial branch actually works.

Sure, Gingrich has other targets: the cases deciding that captured human beings confined far from any battlefield at least have the ability to challenge aspects of that confinement in courts, for example. But other cases striking down acts of Congress, like the invalidation of campaign finance restrictions in the name of a corporation’s right to free speech in Citizens United, are in his words “principled” and should be “appreciate[d].” Abortion decisions, limitations on the death penalty, the potential for one day recognizing equal rights to marry — all are judicial usurpations or “assaults.” Heller, striking down local gun control laws is nowhere to be found. The common thread? The political branches and states should have some sort of power to ignore some kinds of decisions but, apparently not others. Oh, and everyone should be originalists.

Eric Posner, writing for Slate, suggests that Gingrich’s views on this “deserve serious consideration.” I think Posner is correct that the proper arrangement of branches — the design of the informational network of the institutions that comprise the federal government — should be further studied and debated. I’m writing about this, because it’s an area I find fascinating. And I hope to blog about some work I’m doing on the conditions under which law, constitutional or otherwise, legitimately binds future generations and the implications for interpretation and institutional arrangement.

Posner, though, is also correct in his closing paragraph: “Gingrich fancies himself a big-ideas man, but he is really just a politician with an interest in history and a penchant for bombast, and what he needs are ideas that will carry him to the White House.” Dahlia Lithwich has grappled with why Gringrich chose to make this an issue. Maybe it’s easy to bully courts, because they can’t talk back. Maybe he’s trying to shore up hard right support with bluster that he thinks other segments don’t care as much about. Who knows?

One thing is clear, though. Gingrich only deserves credit for advancing the conversation in the sense that he’d deserve it for wondering aloud, perhaps after watching a NOVA special, whether the universe would go on expanding, and suggesting that it indeed would — leading physicists to say that, well, there’s actually debate on this and that Gingrich deserves credit for raising the profile of the issue. But no one would conclude that Gingrich’s foray into physics speculation made him the right choice to lead a team of scientists trying to answer the question. He has shown no more precision, expertise, or ability on the issue of the judiciary’s role.

This won’t generally be a political blog, but what has stuck in my craw over the past few days is the suggestion that Gingrich has advanced a policy at all, much less a serious one. At a minimum, we should expect a presidential candidate campaigning on a policy to identify a problem and suggest what he or she would do about it. Gingrich’s position paper and statements do not come close to doing so. They fail to tell us the problem, fail to specify solutions, even by the gauzy standards of presidential politics, and amount to nothing but bluster, gussied up all law-history-like with citations to Framers, scholars, and judges, most of whom don’t even support the general principle Gingrich seems to advocate.

I think, even though he has taken some heat in the press, that Gingrich gets away with it because it’s a legal issue — both (a) technical enough for many people to defer to the white coat that is the multi-page document dripping with citations and (b) basically unfalsifiable. This is a real problem when it comes to public debates about the courts. Too many people either defer to supposed experts or fail to think deeply enough about what courts do, or they all too eagerly accept a citation-loaded white paper that bolsters their political priors. And political-legal arguments are thus free to float around without even the minimal criticism candidates receive when they talk about the budget or military conflicts, and these “out there” arguments can be cited to prop up the intellectual bona fides of the ones who advance them. (But see Bork hearings.)

Gingrich has somehow managed not to take complete advantage of the dual shield afforded by the nature of law, because he fails to provide a credible account of what he thinks the problem is and how he thinks it should be solved. Sure, he has identified a problem but only in the vaguest sense: that the Supreme Court has reached decisions with which he disagrees and that, on those decisions, the Court should not have the final word. He gives us no criteria for determining when other institutions should be able to overrule the Supreme Court. And what are his suggestions assuming there were some class of decisions open to political reversal? As far as I’ve been able to glean from his position paper, they come down to:

  • The Executive has unilateral power to nullify rulings on “certain national security” issues.
  • “[A] nationwide watchdog” group will be charged with “monitoring the courts and engaging the state legislatures whenever the courts behave radically.” Who knows what “radically” means other than perhaps decisions Gingrich dislikes.
  • State officials could “issue warnings to the federal judiciary about the consequences of the judicial branch exceeding its powers.” I defy anyone to explain what this means.
  • When Congress and the President disagree with the court, or as Gingrich puts it when “it is two branches against one,” the Court can be ignored, at least in an “area where the Constitution empowers the executive and legislative branches.” Of course every piece of legislation involves the consent of two branches, and since legislation is presumably within their power. So what does this mean? No idea.
  • Taking a cue from Lincoln, the President could order agencies “in certain circumstances” to interpret Court rulings as applying only to their facts, and not establishing broader rules. What circumstances?
  • Congress could go to war with the Courts by stripping jurisdiction and reducing or eliminating funding. Why and when?

Contrast this with other conservative targets of ire. Immigration? We’re told the problem is too many illegal immigrants and that the solution is building an electric wall. Terror? We’re told the problem is terrorist attacks and that the solution is war and torture. The economy? We’re told the problem is unemployment and that the solution is drastically cutting government spending. I don’t agree with any of these, or even the less caricatured versions of them, but at least they cite problems and suggest solutions, ones that can involve the public in debate.

I think, on the merits, Gingrich is wrong that there’s an actual emergency here, of whatever nature. I gather he fails to appreciate fully the dynamic institutional framework that we actually have. But, more fundamentally and narrowly (!), I disagree with Posner that anything Gingrich has said or written deserves serious consideration. Posner, himself, has very interesting things to say on this topic. Gingrich does not.