Newt Gingrich is giving fair warning to judges and courts across the country: If he becomes president, the judiciary won’t reign supreme.
The former House Speaker and current Republican presidential front-runner convened a conference call with reporters on Saturday to expand on his call for Congress to subpoena judges or even abolish courts altogether if they make wrong-headed decisions. Those arguments from Gingrich at Thursday's debate in Iowa drew scrutiny and criticism from his rivals.
Then, in what amounted to a 35-minute seminar on constitutional history, Gingrich argued that the judicial branch has grown far more powerful than the nation’s founders ever intended and said it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided.
He cited four examples in presidential history, including Abraham Lincoln, whose administration, Gingrich said, refused to enforce the Dred Scott decision by the Supreme Court on slavery and then actively flouted it by emancipating the slaves with an executive order.
“They just ignored it,” Gingrich said. He said the principle applied most recently to the 2008 Supreme Court decision finding that the Bush administration had exceeded its constitutional authority in handling suspected terrorist detainees at Guantanamo Bay, Cuba.
“A commander in chief could simply issue instructions to ignore it, and say it’s null and void and I do not accept it because it infringes on my duties as commander in chief to protect the country,” Gingrich said of the Guantanamo ruling.
Gingrich, a former history professor, also stood by his statement that Congress could abolish certain courts altogether, although he clarified that it should be a last resort to counteract judicial overreach.
“There are many remedies, there are a number of steps,” he said. “I’m not suggesting that’s the only recourse or even should be the primary recourse. There are a number of in-between steps.”
He added later in the call: “I think it’s important to say, that's the last choice, that's the last place you’d want to go.”
When pressed as to whether a president could ignore any court decision he didn’t like, such as if President Obama ignored a ruling overturning his healthcare law, Gingrich said the standard should be “the rule of two of three,” in which the outcome would be determined by whichever side two of the three branches of government were on.
He also indicated it would be rare for a president or Congress to challenge or ignore a court decision, and said in more than 99 percent of cases “you want the judiciary to be independent, you don’t want the Congress or anybody to be able to rewrite cases, per se.”
Another branch would step in, Gingrich said, when a judge or a court makes a decision that is “strikingly at variance with America.”
“I think it’s important to have a discussion: Do we have a balance of power between the three branches, or do we have a judicial supremacy in which they can dictate to the rest of us?” he asked. “I think the country will overwhelmingly conclude you do not want a court which is capable of dictating.”
During the Thursday debate, Gingrich defended his views on the judiciary from criticism from two conservative former attorneys general that they were “dangerous.”
His chief rival for the Republican nomination, Mitt Romney, said the government had the “ability to rein in excessive judges,” but he criticized the suggestion that Congress should be more active in overseeing the Supreme Court.
“I don't believe that it makes a lot of sense to have Congress overseeing justices,” he said. “The only group that has less credibility than justices perhaps is Congress. So lets not have them be in charge of overseeing the justices.”
Gingrich’s position represents, in effect, a direct challenge to the interpretation of Marbury v. Madison, the seminal 1803 Supreme Court decision that established the principle of judicial review and cemented the high court as the ultimate arbiter of whether congressional or executive acts are constitutional.
Gingrich said the case had been “grossly overstated” in modern law schools in the U.S. He acknowledged that his position on challenging the judiciary would be “controversial,” but he said he was happy that his standing in the presidential race had prompted the national discussion.
He said he developed his proposals after the Ninth Circuit Court of Appeals in 2002 ruled that reciting phrase “one nation, under God” in the Pledge of Alliance in public schools infringed on the separation of church and state.
“I was frankly just fed up with elitist judges imposing secularism on the country and basically fundamentally changing the American Constitution,” Gingrich said. “The more it was clear to me that you have a judicial psychology run amok, and there has to be some method of bringing balance back to the three branches.”