Everyone once in a while I talk about a legal historian who is loose in public -- like me wandering around the aisles of Target (near the coal mines of Midlothian, Virginia), or more seriously James R. Stoner of LSU teaching at Glenn Beck's University -- but right now I want to ask about an exchange between Fox News' Megyn Kelly and Newt Gingrich, who is trained as a historian. (Watch it here.) And what I'm particularly interested in is how he sets up a distinction between his views as a historian and those of lawyers.
Close readers of the faculty lounge may recall that Ms. Kelly is a graduate of Albany Law School (and co-author of "The Conflicting Roles of Lawyer As Director," in Litigation back in 1996). I'd thought of her as a light-weight pretty much, though perhaps that is unfair. At least she had the starch to take on Gingrich's attack on the Supreme Court. Kelly described the plan this way (from the transcript at the Wall Street Journal's Law Blog):
You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether.
I hadn't heard of that idea, though I'm not following the primaries much. In the words of my favorite librarian, "I'm bored by this." (She was referring to Obama's acceptance speech in Denver, but that apt phrase applies to a lot of politics!) In fact, this is the first debate that I watched much of. This is what interests me about the exchange. Gingrich defended the plan "because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people." He continued:
There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. .... I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary. We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.
This is to me the most interesting part of the exchange. Kelly says that the people who criticized Gingrich's plan "are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible." The exchange continued:
Gingrich: "I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? ....
Kelly: Something that was highly criticized.
Gingrich: Not by anybody in power in 1802.
Shouldn't the immediate response by Kelly be something along the lines of, but I wouldn't expect the people in power to criticize the plans of those in power. But instead, Gingrich continued talking and attacked both lawyers and (what a surprise) law schools!
Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.
A couple of observations here. First, I find it important that Gingrich is setting up historians (or maybe history) as a better example of how to interpret separation of powers than generations of legal precedent. Second, Gingrich's examples are really selective and I should think not the best for how to approach separation of powers. Third, I love the way thath law schools are credited (or perhaps Gingrich would say charged) with establishing American culture. I didn't realize we had as much power as Gingrich thinks we do.
Finally, this political focus on constitutional interpretation outside of the Supreme Court may help stimulate more research on public ideas about constitutionalism in US history. At least I hope so. I especially hope that it inspires work on how public ideas about constitutionalism shaped the secession movement. This is what I spend much of my time writing about these days and it seems like no one cares much about the public interpretations of the Constitution in the pre-Civil War era. But maybe there's hope!
Now that I'm reading the Gingrich white paper on this, I see that it cites Larry Kramer's The People Themselves! He quotes Kramer's discussion of the 1958 decision in Cooper v. Aaron for the proposition that "The lawyer class began a grand-scale power grab with the Warren Court in the 1950s." (at page 8). At pages 23-24, in the section on "Reestablishing a Balance of Power Today," he says this about law schools:
The majority of lawyers are being educated in law schools that primarily teach an all powerful model of the federal judiciary and later become members of legal professional associations that largely embrace this philosophy. As the executive and legislative branches vigorously reject judicial supremacy, emphasize the importance of originalism in constitutional interpretation, and reassert their constitutional powers to check and balance the judicial branch, we can expect law schools to take notice. It is important for every law student to explore the historical legal and non-legal materials to understand why judicial supremacy constitutes a fundamental violation of American constitutional thinking, a radical departure from the constitutional system that the Founding Fathers invented, and a dangerous model for the survival of a free society. Legal educators should allow for a robust dialogue in the law schools about the importance both intellectually and for the health of the country to return to a more modest sense of the role of the judiciary.
In fact, a bunch of legal historians appear in the white paper -- Appendix D has a bibliography of "Relevant Source Materials on the topic of Judicial Supremacy and Executive and Legislative Powers to Check and Balance the Judicial Branch." Among the scholars cited there are Erwin Chemerinsky, Saul Cornell, Don Fehrenbacher, Robert George, Mark Graber, Daniel Hamilton, Morton Horwitz, Daniel Hulsebosch, Frank Michelman, Chris Tomlins, Mark Tushnet, Robin West, and Gordon Wood.
Update as of December 18: At the end of the debate, Ms. Kelly commented something to the effect of "Gingrich provided a strong response on the judiciary, which would play well with the base, but might prove a problem for him going forward in the general election." That seems like it is already the case; yesterday's LA Times has a story that discusses Gingrich's suggestion (in the white paper linked to above) that in some cases he might ignore a Supreme Court ruling.
Does anyone believe Gingrich will complain about a "judicial dictatorship in this country" or an insufficiently "modest" judiciary if SCOTUS invalidates the individual mandate or other parts of PPACA later this term? This is why I have so much trouble taking what he (or most other critics of "judicial activism") says seriously.
Posted by: Howard Wasserman | December 18, 2011 at 07:52 AM
You noted that the appendix to Gingrich's white paper has a bibliography citing many noted legal scholars. From what I have read about Gingrich's work, there tends to be a pretty severe disconnect between what is in the work and what is in the bibliography. It is like the student who writes a term paper and then slaps on any impressive sounding names or book titles that he or she happened to stumble across (or crib from elsewhere).
I freely -- happily, even -- admit that I have not read anything he has written, mostly because a) I don't trust him, and thus judge him by his actions, not his words, and b) there is no way someone with as busy a schedule as he has had for the last many years would really have been able to write the volume of materials with his name on it.
Posted by: DHMCarver | December 20, 2011 at 05:42 PM
DHMCarver--I agree that there's a disconnect between what's in the white paper and the bibliography.
Posted by: Alfred Brophy | December 21, 2011 at 01:29 PM