Advancing a Free Society

Newt Gingrich as Don Quixote

Saturday, December 31, 2011

It is hard to know where to begin after reading the outbursts that Newt Gingrich has directed as of late toward the federal judiciary.  He may receive rousing applause for his tirades against the dictatorial courts in the United States.  But the sad truth is that his reckless attack on the courts promises to be one of the most destabilizing events imaginable.

Gingrich, who sports his own feeble academic credentials far too often for his own good, should remember that the one great concern that the Framers had about the judiciary was the institutional arrangements that were needed to serve its independence.  In staking out this ground, the Framers were not concerned with the institution of judicial review with respect to legislation.  Rather, they knew that the application of the law in any given case could be hopelessly compromised if the judges could be forced to account for their individual decisions in the halls of Congress.  It is for that reason that we should tremble at the prospect of a Congressional inquisition of judges whose decisions offend the sensibilities of the dominant political party.  Impeachment is available for gross derelictions of duty, but I doubt that it makes the slightest sense to bring those proceedings against the members of the Ninth Circuit who thought to take the words “under God” out of the Pledge of Allegiance.

Continue reading Richard Epstein...