No doubt the court must check the president and the Congress when they exceed their powers. But who is checking the court when it violates the Constitution? Under a system of judicial supremacy, the answer is simple: no one at all. Rather than having ambition counteract ambition, a system of judicial supremacy assumes that judges are angels while allowing their ambitions for power to roam free. This explains why Thomas Jefferson once said that such a system would produce “the despotism of an oligarchy.” It is a dangerous despotism indeed. The same court that gave us Brown v. Board of Education also gave us the right to slavery in Dred Scott v. Sandford, the internment of the Japanese in Korematsu v. United States, and the deaths of 50 million unborn citizens in Roe v. Wade. It is the same court that flouted its own precedents and common sense to give terrorists the right of habeas corpus in Boumediene v. Bush, a 2008 decision that Justice Antonin Scalia said “will almost certainly cause more Americans to be killed.” The ultimate guardian of the people’s liberties must be the people themselves. — Newt Gingrich, in USA Today
Gingrich’s newest harebrained crusade is to strip courts of the right of judicial review, which our republic has managed to live with since the Supreme Court headed by John Marshall (arguably America’s first great conservative) propounded it in 1803. If Congress or the president doesn’t like a court decision, Gingrich thinks the offending judges should be called before Congress — U.S. marshals could haul them in — to justify their decision. If Congress didn’t like the explanation, the lawmakers could impeach them. Gingrich insists that he understands there are three separate branches of government, but their larger purpose seems to elude him. The president and Congress are supposed to represent the will of the people, whom they serve by virtue of democratic election. In the broadest sense, they represent the principle of majority rule. The courts act as a check on majority rule by protecting the legal rights of minorities against the abuses of the majority. If the courts had been subjected to congressional overrule during the 1950s, when Southern segregationists chaired most key House and Senate committees, it’s not clear when or how the South’s schools would have been desegregated. — Harold Meyerson, Washington Post