Gingrich, Judicial Review, and “Two out of Three”

Here’s what’s been in the news in the aftermath of the former Speaker’s interview on Face the Nation over the weekend:

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.