Citing what he describes as “extreme behavior” on the party of the judicial system, Gingrich proposes a system wherein “it’s always two out of three.”

“If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses,” said Gingrich. “The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power — not to have a dictatorship by any one of the three branches.” . . .

Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that’s the point.

“I think many lawyers will find this a very frightening idea,” he said. “They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged. The lawyer class defines America. We’ve had rulings that outlawed school prayer, we’ve had rulings that outlawed the cross, we’ve had rulings the outlawed the 10 Commandments, we’ve had a steady secular drive to radicalize this country away from all of its core beliefs.”

Here’s a bit of a rant by Les Francis over at FrumForum:

Because of Marbury, the federal judiciary is the recognized and essential referee when something has to be called in or out of constitutional bounds. As a democratic society we’ve gone along with that system for a very good reason: Someone has to have a whistle and a yellow flag, and the accompanying authority and respect to make the calls stick. Presidents must accept the Courts’ decisions, as must Congress, as must we all. We don’t give the loudest or most shrill people in the stadium the power to reverse the ref’s verdict. Nor do we turn to Gallup, Roper, or Harris to make the call.

We can disagree with the Court’s decisions, and have, from Marbury, to Dred Scott, to Roe vs. Wade and Bush v. Gore—and thousands in between and since. But we obey and respect them because the alternative is chaos and, for some, grievous injustice.

So when Mr. Gingrich rails against “activist” or “elitist” judges, or when he accuses the judiciary of being dominated by “un-American” values, we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue, rather than merely an objective (non-lobbying but high priced) historian. On the other hand, if his statements are an accurate reflection of Mr. Gingrich’s knowledge and understanding of American history, maybe Freddie Mac should seek a refund.

I’m not going to defend his comments, but I kind of find the outside-of-the-box thinking to be healthy, even if only to reaffirm the merits of our current system of judicial review.  Gingrich is hardly the first to use the “activist” or “elitist” labels; these are among the favorite jabs used by conservative thinkers, often by those sitting on the federal bench itself.  And there are legal scholars out there who support abolishing judicial review on the theory that a nine-person Supreme Court is no better at protecting rights than democratic legislatures, and that the process itself is antithetical to democracy (which, of course, America technically is not).

Abolishing judicial review would seemingly create a de facto two out of three system, though it would not involve the Supreme Court: bicameralism and presentment would be the only option in such a scenario.  But an actual two out of three system?  There are a million questions I could ask, but one that comes to mind is what would a two out of three situation with the Supreme Court and the President look like?  Who would write the law?  In reality, judicial review of federal laws, like we have today, inherently involves a two out of three situation — laws challenged in the courts have already been passed by both houses of Congress and signed by the President.  The only thing is that the Supreme Court can effectively veto it.

This could all be debated and discussed forever.  But I like the fact that something as nerdy as judicial review is in the news.

If Justice Kennedy had a way to decide such questions that he could apply in case after case, he might fairly be characterized as a “thoughtful” jurist. But he does not lay down any neutral principles for deciding constitutional cases. Rather, he agrees with one faction in one case, and the other faction in another case. The media refers to this form of adjudication as moderation. It’s more accurately described as unprincipled.

There is no moderate way to interpret anything. One can only interpret by the application of neutral principle, i.e., original meaning, plain meaning, application of precedent, textualism, etc. If the meaning of a phrase is so elusive that the judge is willing to split the baby, or flip a coin, then that judge is not acting as a judge but rather a politician.

We would be better served without moderate Justices. We should expect our presidents to appoint people to the Supreme Court who have records and judicial philosophies.

Having moderate public policy positions is, to me, itself a principle. It’s rooted in the assumption that the world is too complicated to paint with a singular ideological brush and that policy-making, more often than not, requires case-by-case analyses that emphasize the realities of a given issue, rather than some boilerplate way of seeing the world.

But being a Supreme Court Justice is different.  Whereas legislators, as law-makers, are on the normative end of the process, the job of a Justice is to analyze existing law and apply them to a given set of facts.  Whether it be a piece of legislation or a constitutional provision, a law is the end-result of a normative policy debate.  Supreme Court Justices shouldn’t have a second crack at this process.  Instead, they should adopt some sort of limiting principle that keeps them from straying into the realm of subjectivity.

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” 

I feel like this not only makes having a debt ceiling unconstitutional, but even makes debate over raising the debt ceiling unconstitutional. “Shall not be questioned” are some pretty strong words, and to say that this is what Congress has been doing all summer would be euphemistic.

This is all, admittedly, Monday morning quarterbacking, but I would have supported President Obama had he raised the debt ceiling on his own, as the head of that branch of government that executes America’s laws.  I might not be the most liberal person fiscally, but this wasn’t a debate over spending; this was a debate about paying our bills. And with such clear and on-point constitutional language to rely on, I would have respected such a bold move from our President.

The Court has upheld other federal laws that involved equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals. If, as Wickard shows, Congress could regulate the most self-sufficient of individuals—the American farmer—when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it. And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for selfmedication, Raich, 545 U.S. at 6–7, and if it could do so even when California law prohibited that marijuana from entering any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.

Yglesias then comments:

To me, the beginning of wisdom on the Affordable Care Act litigation is just to start with the observation that lots of people think Wickard and Raich were wrongly decided. Which is fine. But “I want the courts to overturn existing precedents and strike down a new law” is different from “Congress has committed an unprecedented infringement of my liberty.”

Let’s assume Wickard and Raich were rightly decided.  As the above makes clear, those cases involved government regulation of affirmative conduct — namely, a prohibition on growing certain amounts of wheat and marijuana.  The Affordable Care Act does the exact opposite: it requires you to do something — namely, buy health insurance — for no reason other than you being alive.

Putting “infringement of liberty” hyperbole aside, this truly is an unprecedented form of congressional regulation of commerce.  In order for healthcare reform to survive in the Supreme Court, supporters would be wise to embrace this fact and argue instead why current commerce clause jurisprudence should be extended to cover such laws.

But it’s not certain that we’re going to have a massive exodus from California prisons.  Here’s the situation going forward, according to Justice Kennedy’s majority opinion:

The order leaves the choice of means to reduce overcrowding to the discretion of state officials.  But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served.

So the state can still take some action here to expand its facilities and improve the pretty awful conditions of its prisons.  Of course, with California’s $10 billion deficit, its resources are a tad limited.  But Governor Jerry Brown has a plan that would involve moving inmates not convicted of violent, sex-related, or otherwise serious crimes to county jails, and the hope is they can move a decent chunk of inmates before the two year deadline imposed by the Court, and perhaps ask for an extension down the road.

But how bad are conditions in the California prison system?  Allow me to provide some “highlights” in the form of direct quotes from the Court’s opinion:

1. Prisoners are crammed into spaces neither designed nor intended to house inmates.   As many as 200  prisoners may live in a gymnasium, monitored by as  few  as two or three correctional officers.
2. As many as 54 prisoners may share a single toilet.
3. The consequences  of overcrowding identified by the Governor include “increased, substantial risk for transmission  of infectious illness” and a suicide rate “approaching an average of one per week.”
4. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert  reported observing an inmate who had been held in such  acage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.  Prison officials explained they had “no place to put him.”
5. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations.
6. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment.
7. A prisoner  with severe abdominal pain died after a 5-week delay in referral to a specialist;  a prisoner  with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor;  and a prisoner died of  testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”

Opinions will certainly vary here.  The dissenters, in opinions written by Justice Scalia and Justice Alito, basically adopted a federalist type argument — namely, that it isn’t the province of the federal courts to get so involved in state penal systems.  But from what I understand, the District Court was acting pursuant to a federal law designed to cure constitutional violations.  The idea here is that overcrowding can constitute cruel and unusual punishment in violation of the Eight Amendment.  So if the Constitution is violated, then this is clearly the province of the federal courts.

And let me just say that a prisoner yields his liberty, but not his dignity.  A prison sentence should certainly not be a walk in the park, but we have to do something if a term of years is effectively a death sentence.