ThinkinProgressin:
GINGRICH: The fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.
(emph theirs)
Much hay has been made of Newt's facially absurd statement vis Art III, Sec 1 of the American Constitution. But to be fair as a professorial type who speaks extemporaneously, I actually get what he was trying to say: there is of course “one supreme Court” atop the judiciary but it is not, according to some interpretations, supposed to have supremacy over the rest of government, which according to some interpretations, an “activist” court that voids laws and such would have contrary to what should be.
Still, it's a stupid thing to say, and is the usual tripe about “legislating from the bench” and “OMG, if they say some law is unconstitutional, that's like having 5 lifetime tenured people in robes subvert the constitution unless it's Bush v Gore and other rulings we agree with!”
There's this this Marbury character who might disagree:
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Tocqueville might have something to say as well:
The first characteristic of judicial power in all nations is the duty of arbitration…The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles…The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair.
…
The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.
But lemme take a moment away from Newt bashing and admonish Think Progress to read Sec 2: the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Thing of it is, the dude's right that Congress can limit the SCOTUS's non-original jurisdiction. And it has.
That includes the case TP cites: McCardle, wherein Congress granted the Court specific jurisdiction, then removed it. Not to mention many decades earlier when SCOTUS was first created by the Judiciary Act of 1789 (start with Sec 13). And today, the US Code:
CHAPTER 81—SUPREME COURT
- § 1251. Original jurisdiction
- [§ 1252. Repealed.]
- § 1253. Direct appeals from decisions of three-judge courts
- § 1254. Courts of appeals; certiorari; certified questions
- [§§ 1255, 1256. Repealed.]
- § 1257. State courts; certiorari
- § 1258. Supreme Court of Puerto Rico; certiorari
- § 1259. Court of Appeals for the Armed Forces; certiorari
Newt was also right in his Federalist citation. Hamilton, Number 78:
[T]he judiciary is beyond comparison the weakest of the three departments of power…
But, uh, he forgot the next immediate part:
[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.
So Hamilton thought that the Judiciary wasn't so much a threat to Liberty, unless there's, say…a conservative Court when the Executive and Legislative branches are also conservative. Like we had just recently, as I recall.
Continuing:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.
…
[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
…
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Hamilton goes on to discuss contradictory laws, which is straight out of Montesquieu:
[T]he law is loaded with decrees that sometimes contradict one another…This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradiction or uncertainty of the law.
Anywayz, the point is that the courts have an important role to play in our republic with a separation of powers. We might not like their rulings–they've not gone the way I'd like WRT corporate power, they've not gone the way righties would like WRT healthcare reform–but we can't denigrate their purpose or part in our political process (alliteration not wholly intended). And we might not like the fact that there are remedies such as Congressional action changing jurisdiction (not saying that's any better an idea than stacking the Court ala FDR), and amendments to override what the weakest branch proclaims (why I'd like an anti-Citizens amendment ala the 14th v Dred Scott).
So this is a fundamental reason why, even if the Democrats are corporatist bastards with merely a thin dime's difference between them and the GOP, you might consider the alternative is indeed at least a bit worse: Republican control of Congress with no Democratic veto in the Executive that enables court stripping to eliminate civil liberty protections.
ntodd
PS–Thanks to a FB friend for the crystal seed that formed the post title.