Dear Newt Gingrich: Judicial Supremacy Does Not Exist

Adam Liptak of the New York Times has written an article on Newt Gingrich's views of the federal courts. The article basically contains the same information as an earlier report by the Washington Post (see analysis on Dissenting Justice). There is, however, an additional point.

Gingrich condemns what he calls "judicial supremacy." By that, I suspect that he means (the article does not explain, but this is a well known debate among legal scholars) the notion that the Supreme Court has the last word on questions of constitutional law. Gingrich cites to Cooper v. Aaron for that proposition. Decided in 1958, Cooper arose out of the standoff over desegregation in Little Rock, Arkansas. State officials argued that they did not believe segregation was unconstitutional, and they claimed that states could nullify rulings of the Court. The Supreme Court, however, said that its ruling in Brown v. Board of Education of Topeka, Kansas stated a constitutional principle, and that the Supreme Court's doctrine on the constitution is binding and controlling as constitutional law.

Many commentators argue that Cooper went beyond Marbury v. Madison (which established judicial review), and in many ways, this is a reasonable observation. But if Gingrich is really concerned about activist and imperialist judges, he could have pointed to much earlier precedent. In the early 1900s, the Court began to apply a very rigorous standard of review in cases challenging various economic and labor regulations. This infamous period is known as the Lochner era (named for Lochner v New York, a 1905 case that struck down a New York labor law in the baking industry). During the Lochner era, the Court invalidated over 200 laws - much more than during any other 3-decade period.

The Court would continue its conservative approach until the New Deal era, when it struck down several pieces of popular legislation that FDR promoted to deal with the impact of the Great Depression. Roosevelt's critiques of the Court, the terrible state of the economy, the popularity of economic legislation, and personnel changes on the Court led to a major shift in direction. The Court suddenly began applying a more relaxed standard and overruled the restrictive case law from the Lochner era.

The overruling of Lochner disproves the entire idea of judicial supremacy. While Supreme Court interpretation of the Constitution binds state and federal governments, its rulings do not end the debate over the meaning of the Constitution. Instead, the Court responds to politics, public opinion, social conditions, social movement activity, and other factors outside of mere judgment. Indeed, the involvement of the president and the senate in the appointments process ensures that the Court will reflect majoritarian or at least mainstream values.

Gingrich's rant on judicial supremacy is uninformed. It is also simply a reflection of his own ideological commitments. He limits his criticism to liberal opinions -- not conservative rulings that coincide with his own ideology.