Nullification is a Bad Idea

Dear Readers, According to Newt Gingrich, the fabric of our country is weakened by a "radical judiciary." While he has some offending instances in mind, he lacks a universal definition. For example what would Mr. Gingrich say if a President Obama refuses to recognize a Supreme Court decision overruling his healthcare program?

Mr. Gingrich asserts, as a basic principle, that we are captive to an "elitist" class (i.e., lawyers). He proposes common folk regain their proper place as the front-seat driver of "American Exceptionalism" by having elected officials (Congress and the President) adopt a nullification policy, overruling "radical" judicial decisions. Yes, just what we need ... add judicial decisions to the current political-circus.

His examples of a radical judiciary are a 2008 ruling by the United States Supreme Court that detainees at Guantanamo had the mere right to challenge their continued detention in the court system. And, his other principal complaint is a 2007 decision by a District Court Judge in California ruling unconstitutional the recitation of the Pledge of Allegiance. This latter decision, of course, was later overruled by the 9th Circuit Court of Appeals. In other words, if this was "radical," the system self-corrected.

Mr. Gingrich opines that this judge should be impeached for his "un-American" ruling; and, that he, and justices of the U.S. Supreme Court, should be hauled before Congress to explain themselves. If they refuse to appear, which he suggests probably would not happen, the Capitol Police and/or U.S. Marshals should be dispatched to arrest the recalcitrant jurists and haul them before Congress in handcuffs – a constitutional crisis almost without precedent.

Politicians' grumblings about the judiciary is nothing new. On the "right," politicians have periodically tried to use the judiciary for political advantage. Thomas Jefferson once attempted to deny duly appointed judges their "office," because their appointment was not "delivered" until after John Adams' term had expired. Ironically, this was one of our most violently politically partisan periods. The Federalists (today's modern Republican Party) tried to pack the federal judiciary system to protect their commercial interests against the rabble of the newly elected populist Jeffersonian-Republicans (today's modern Democratic Party).

Chief Justice John Marshall nixed this idea, establishing that the Supreme Court has final say on the constitutionality of political action; presumably, it is this fundamental constitutional principal (200 years-old) Mr. Gingrich finds repulsive. Hence, in another irony, the very idea of judicial supremacy, now an anathema to Mr. Gingrich, is actually a "conservative" legal principle.

The "Left" has also had their moments of disgust with the judiciary. It led to F.D.R.'s equally dangerous proposal to expand and "pack" the Supreme Court with New Deal proponents to blunt the voice of conservative-thinking justices. Thankfully, he never acted on his idea. President Obama called out the Supreme Court at his State of the Union address for its Citizens United decision, declaring corporations people for purposes of free speech. Under Mr. Gingrich's theory of nullification, President Obama could ignore this decision as "radical" and order the Justice Department to arresting people for violating campaign election laws. Seriously.

The judiciary is the final protector of our political system and we have accepted this for 200 years. When Presidents have acted outside the bounds of the Constitution, it has fallen to the judiciary, not Congress, to reign them in. Perhaps, its greatest shame was its support for institution of slavery in its Dred Scott decision – three (3) years later we were at war over this legal principle. Without the Supreme Court's intervention, there might not have been a Civil Rights Era. Imagine what constitutional crisis we would have if the Supreme Court's Bush-Gore 2000 election had been subject to a "nullification" challenged by Congress.

In the United States, we respect our laws and judicial system. It is the very lack of politicization that breeds this trust. Sometimes the judiciary gets it wrong, but these mistakes typically are fixed. We have one consistently respected branch of government, infecting it with the rest of Washington's political insanity is beyond a horrible idea.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor.

Tags: Chief Justice John Marshall, Guantanamo, Newt Gingrich