The Left-Wing Origins of Newt Gingrich’s Attack on the Courts

 

By Damon W. Root

Writing in The Washington Post, Harvard Law School’s Thomas Donnelly points out that Newt Gingrich’s recent attacks on the judiciary “hark back to a time when progressives were committed to curbing court power.” As Donnelly writes:

A century ago, Theodore Roosevelt spoke to a convention assembled to revise Ohio’s constitution. Spurred by recent court decisions striking down various labor laws, Roosevelt called for reforms that would ensure that the American people had the final say over important constitutional questions. In so doing, Roosevelt attacked judicial supremacy, believing it “both absurd and degrading to make a fetish of a judge or of anyone else.”

At the center of Roosevelt’s reform agenda was a simple, albeit controversial, proposal: the recall of judicial decisions. Roosevelt summarized this by saying that, when judges decide a constitutional question, “the people should have the right to recall that decision if they think it wrong.”

Progressive era activists favored judicial restraint because they saw the courts as a bulwark against their various regulatory schemes. You can’t fashion a bold new tomorrow with a pesky judge striking down your transformative agenda, after all. So why not try to hogtie the judge? Theodore’s distant cousin Franklin Roosevelt ran into the same problem a few decades later when the Supreme Court began striking down portions of his New Deal, which is why he wanted to pack the Court with a bunch of new justices willing to vote yea. Thankfully, even some of FDR’s most liberal supporters refused to go along with that authoritarian plan.

Yet Donnelly’s big takeaway point is that today’s progressives should not be so quick to entirely reject Gingrich's war on the courts, especially given his plan's left-wing pedigree. According to Donnelly, maybe it’s even time to resurrect Teddy Roosevelt’s “People’s Veto." As he writes:

For instance, such a veto could be reserved for 5 to 4 decisions of the Supreme Court on constitutional issues — in other words, decisions in which the majority is often attempting to push constitutional doctrine in a new direction. A People’s Veto would permit the public to weigh in, perhaps following a national petition drive or congressional authorization.

I suppose there are some liberals out there who would like the chance to vote down the Court’s campaign finance ruling in Citizens United or its Second Amendment decision in D.C. v. Heller. But how many of those same liberals would also like to subject the Court’s abortion decisions to the People’s Veto? How about the Court's decisions limiting presidential power in the war on terror? The whole point of an independent judiciary is that it can sometimes act as a check on the tyranny of the majority, which is precisely why Gingrich—like the Roosevelts before him—wants to do away with it.