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Tuesday, December 20, 2011

Losing ideas amid the noise

Newt Gingrich has surrounded his court plans with so much ideological noise, and has been met with so much noise about in response, mostly about how Gingrich is trampling over an independent judiciary. Unfortunately, the noise in both directions ignores the likely constitutional legitimacy--if not necessarily policy wisdom--of some of what he is talking about.

Gingrich is fundamentally correct that a president could disagree with judicial decisions and could act on that different understanding--in other words, he could ignore what the Court has said in its opinions. The president can use that different understanding in many contexts--in making enforcement choices, in enacting regulations and other executive-branch rulemaking, and in proposing, supporting, and signing legislation. And Congress could do the same. In Fed Courts this semester, we spent time discussing the Congressional Accountability for Judicial Activism Act (proposed in 2005, it never went anywhere), which would have allowed Congress to override Supreme Court decisions invalidating federal legislation by 2/3 supermajority in both houses. It seems to me this would be a valid congressional practice, a position the entire class unanimously and loudly rejected. But it seems uncontroversial that Congress and the president could together reenact (and by just simple majorities) legislation identical to the one just invalidated by the Court, which would be an implicit override of the Court's decision. So what is different about a formally adopted congressional statement rejecting the Court's decision?

Contrary to much of the criticism, this is not about judicial independence; none of this affects or inhibits judicial power or discretion. Federal judges are not threatened in any way--we need not talk about impeachment or jurisdiction stripping or defunding courts. Nor are judges hampered in their power to decide cases according to their best constitutional judgment, since the Court need not accept or recognize the overriding legislation or the contrary constitutional vision. The Court could keep invalidating the re-enacted law.

What it sets up instead is a constitutional conversation among the branches and, presuambly, an eventual resolution when some branch alters its constitutional understanding. Maybe it will be Congress, which gives up if the Court keeps striking that legislation down. Maybe it will be the Court, which eventually gives the reenacted (or overriding) legislation its constitutional blessing.

Gingrich somewhat crassly argues that the winning position will be whichever one gets the support of two branches. Andrew Cohen of The Atlantic calls this a "shuddering vision" of separation of powers reduced to Rock-Paper-Scissors. But  this seems to be precisely how separation of powers and departmentalism are supposed to work--out of the conflict and competition among the branches emerges some constitutional consensus. This is admittedly ugly to watch in practice and could result in some risky stalemates. It also may work somewhat as Gingrich suggests, with the third branch taking sides to determine the winner: Imagine the Court invalidates Statute X and Congress attempts to override the decision by enacting Statute Y, which is identical to Statute X, containing a finding of how the Court's prior decision was wrong; the success of that override effort would depend on which side the president takes and whether he will sign and enforce the overriding legislation. It also may depend on where the public comes out on the issue and whether one side or the other may face electoral advantages or disadvantages for their role in any stalemate.

Things get somewhat trickier if the executive's differing constitutional vision leads him to either: 1) ignore a judgment and order in a given case, such as an injunction prohibiting enforcing of a statute (this is the line that many departmentalists draw) or 2) make arguments in court that are premised on disagreement with controlling precedent (this is the fine line the Justice Department has tried to walk in litigating DOMA). Gingrich has suggested a real willingness to ignore specific orders in specific cases, such as one invalidating bans on same-sex marriage or limiting the president's power over detainees. Here the inter-branch conflict becomes more concrete. He is right that the president can ignore a judicial order (as can any other litigant); he just runs the risk of being held in contempt for doing so. Then we see whether the court would hold the president (or the AG or some other top executive official) in contempt and, if it did, whether and how that order would be enforced. Similarly, DOJ attorneys can make constitutional arguments that depart from or ignore controlling precedent; they just risk the court's sanctioning power (again subject to questions of enforcement). All his sets up a conflict and competition of ideas between the branches that will end when one branch alters its constitutional view (perhaps because the third branch or the People stepped into the mix on one side).

Gingrich critics, such as Cohen, assume that any of these inter-branch conflicts are dangerous, that the Constitution (properly understood) must prevent them, and thus a constitutional vision that would allow them must be wrong. To be sure, the conflict is potentially dangerous (at least if it occurred too often and went on too long); it also is ugly to watch, and should be avoided. But critics go wrong by misidentifying the origins of that avoidance; it comes not from the Constitution, but from sub-constitutional politics and inter-branch comity that have carried the day as a matter of history.

What makes Gingrich's anti-court diatribes troubling is his rhetoric. His starting point is that federal judges are out-of-control dictators seeking to impose an un-American vision who must be stopped, rather than this being a product of differing good-faith constitutional visions. His rhetoric then justifies exercise of this power, likely far more frequently than has been done historically. And that, ultimately, is where the criticism should lie: Not that Gingrich insists that the Constitution allows for these sorts of inter-branch conflicts over constitutional meaning, but that he seems to be itching to get into it with federal judges.

Update: Eric Posner makes some similar points, including how the important ideas--which is basically a simple rejection of judicial supremacy--are lost in Gingrich's bombast.

Posted by Howard Wasserman on December 20, 2011 at 10:05 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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