Newt Gingrich, who says as president he would ignore U.S. Supreme Court rulings he dislikes, has plenty of company among Republican candidates in vowing to blow up long-held premises of constitutional law.
Rick Perry is calling for judicial term limits. Michele Bachmann says she would invite a confrontation with the court over abortion. Ron Paul would bar federal judges from hearing many cases involving abortion, same-sex marriage and religion.
Almost a half century after Richard Nixon campaigned against Supreme Court criminal-law rulings, Republican presidential candidates have ratcheted their criticisms of the judiciary to new levels in the 2012 campaign, sometimes drawing rebukes from prominent lawyers in their own party.
In advance of the Jan. 3 Iowa caucuses, the candidates are moving beyond objections to individual judges and rulings and telling voters that they want to cut back the authority of the government’s third branch and assert the supremacy of the president and Congress on social issues.
“Republicans are starting to unite around the idea that we’ve got to do something structurally to bring the courts back within the bounds established by the Constitution,” says Robert George, a constitutional law professor at Princeton University in New Jersey. George questioned the candidates at a Sept. 6 forum in South Carolina.
Reining in the judiciary is not an issue that tops voters’ concerns in public opinion polls. Still, it may have particular resonance in Iowa, where social conservatives last year unseated three state Supreme Court justices who supported a 2009 decision allowing same-sex marriage. Gingrich backed the effort and a charitable group he founded helped provide financing for the campaign, R.C. Hammond, Gingrich’s spokesman, said.
The former House speaker and co-leader in primary national polls with former Massachusetts Governor Mitt Romney, Gingrich is making the judiciary a central campaign issue. He told reporters in a Dec. 10 conference call he is “fed up with elitist judges imposing secularism on the country and basically fundamentally changing the American Constitution.”
As evidence, the former Georgia congressman points to a 2002 appeals court decision barring public-school teachers from leading the Pledge of Allegiance with the words “under God” and a June decision by a San Antonio judge barring student-led prayer at a high school graduation. Both rulings were unanimously reversed on appeal.
Gingrich says judges who issue “anti-American” decisions should have to defend themselves before Congress -- or face arrest if they fail to appear to do so. He says he would impeach those judges and potentially abolish their courts.
Some of Gingrich’s proposals are drawing fire from fellow Republicans. Two of former President George W. Bush’s attorneys general, Michael Mukasey and Alberto Gonzales, last week told Fox News that mandatory congressional testimony on rulings would threaten judicial independence. Mukasey, who has informally advised Romney, called Gingrich’s approach “outrageous.”
Edward Whelan, another former Bush administration official, said in a blog post on National Review Online that Gingrich’s plan to abolish judgeships is both unconstitutional and “foolish.”
The proposal “threatens to undermine his ability, if he is elected president, to achieve real and readily attainable progress in the war against liberal judicial activism,” wrote Whelan, the president of the Ethics and Public Policy Center in Washington.
Less controversial, at least among the Republican Party base, are calls for the president and Congress to assert co-equal status with the Supreme Court in interpreting the Constitution.
At the Sept. 6 forum, Bachmann said she would support an effort to end abortion rights -- and overturn the landmark 1973 Roe v. Wade decision -- by invoking Congress’ power to enforce the 14th Amendment’s equal protection guarantee.
“If the Supreme Court, by a plurality of the justices, may impose their own personal morality on the rest of the nation, then we are quite literally being ruled by those individuals, as opposed to giving our consent to the people’s representatives,” said Bachmann, a Minnesota representative.
At the same event, Romney said he wasn’t “looking to create a constitutional crisis.” Even so, Romney left open the possibility that Congress and the president might take such a step.
“It’s reasonable that something of that nature might happen someday,” he said.
Paul would strip federal courts of jurisdiction over certain types of cases, including challenges to state and local abortion restrictions, marriage laws and religious displays.
The Texas representative said last month that legislation he introduced in Congress could have “saved millions of lives” over the past decade by letting abortion restrictions go into effect.
Perry, the governor of Texas, says he would seek a constitutional amendment imposing term limits for newly appointed federal judges. The Constitution says federal judges can keep their seats “during good behavior.”
The calls to limit judicial power stem in part from a re-evaluation of the seminal 1803 Supreme Court decision Marbury v. Madison, in which Chief Justice John Marshall said it is “emphatically the province and duty” of the courts “to say what the law is.”
Some legal scholars now say that ruling establishes only that the Supreme Court can interpret the Constitution as needed to resolve a legal case. Gingrich has endorsed that reasoning, contending that Presidents Thomas Jefferson, Abraham Lincoln and Franklin Roosevelt all took actions indicating they rejected judicial supremacy.
Gingrich says the notion of judicial supremacy didn’t take hold until 1958, when the high court unanimously ordered Arkansas officials to obey the Brown v. Board of Education school desegregation decision. In a 54-page position paper on his website, Gingrich calls the 1958 decision “factually and historically false.”
Gingrich’s attack on a legal pillar of the civil rights movement is fueling criticism.
“It’s not just that his end proposals are radical,” says Ian Millhiser, a policy analyst at the Center for American Progress Action Fund, an advocacy group in Washington founded by a Democrat. “The intellectual basis of his proposals are shocking.”
Republicans could suffer under Gingrich’s approach. The candidate’s reasoning would mean President Barack Obama could try to ignore the Supreme Court next year, should the justices declare the 2010 health-care law unconstitutional, George said.
“What’s sauce for the goose is sauce for the gander,” George says.