My brief post about Newt Gingrich has brought forth a set of comments, and I think that second post is needed for clarification. Here are some points.
In reading Gingrich in his 21st Century Contract with America, he is often hopelessly confused about the meaning of the term judicial activism. Thus he instances Kelo v. City of New London as a case of judicial activism when it is the high point of judicial quietism. Gingrich talks about how it is that the Court should yield to the Congress and the states, which is of course exactly what they did. His real beef in the case was that the Court disregarded what he thought was the plain meaning of the words “public use” to let the states go too far. They could of course rein in their conduct at any time, and since Kelo some states have done that, either by legislation or by practice. But to be upset with this decision highlights the devotion that Gingrich has towards judicial supremacy. He wants the Court to protect Ms. Kelo, as do I.
The same point applies to the decision of Nancy Pelosi and the PPACA. Member Steven Drexler rightly chides her for being indifferent to the entire question of the constitutionality of this legislation (which, full disclosure, I am working to overturn in the Supreme Court). But again this is not a case in which there is a yearning for judicial passivity. It is an insistence that a Congress of limited and enumerated powers not extend its jurisdiction by hook or by crook to cover whatever it wants. Indeed in a federal system, I cannot see how it could function without the strong sense of judicial review.
Third, in dealing as Gingrich does with the rights of detainees, you do not need judicial supremacy to say that they have a right to a hearing in court. That is a jurisdiction to resolve individual cases that is conferred on courts through their right to issue habeas corpus. Legislation that stripped them of that right would entrench on the judicial branch. Indeed, no matter what view one takes of judicial supremacy, there is never in individual cases the ability of the President or the Congress to disregard the requirements of Due Process.
Fourth, to the mysterious ultra vires, my views on Newdow are not inconsistent with my general views on standing. The major concern that I have in that regard is with the inability of anyone to challenge on structural grounds decisions of the government that are indeed ultra vires its powers. Thus if Newdow, qua citizen, wanted to challenge the adoption of the Pledge of Allegiance by Congress, he should be able to do so, just like any other citizen. But note that if he won, the only thing that he could insist on is that the government not require the pledge. It does not prevent other people privately from taking it up.
In this instance, however, his ambition was to keep his daughter from having to say the pledge in her classroom. That is not a generalized challenge, but a very specific one. The reason he does not have standing here is that the California family law system gave exclusive custodial rights to the child’s mother, not to him. So we do not have here the situation where no one can challenge the law of general applicability. Any parent could raise that challenge on behalf of his or her children. The argument therefore was that Newdow was the wrong man, not that parents cannot seek to insulate their children from the pledge. Cases like that have been brought on many occasions, including in West Virginia v. Barnett, the flag salute case.
Last, I think that the many readers who expressed their antipathy to what they regarded a sloppy decisions by the Court may well be right in many cases. I have voiced these vehement criticisms myself. But the errors run in all directions, and sometimes favor liberal and sometimes conservative causes. Larry Kramer, the Stanford Dean (and my former student) has written about We the Court, to express the populist anger at the Supreme Court. I thought, and continue think that his position is overwrought. It is ironic that Kramer, who is a man of the left, now finds that his rhetoric is used by his ideological opponents.
We need to dial down the animosity, and spend more time dissecting particular decisions for their strengths and weaknesses and less time on global attacks which could unmoor the institutions that we have and put, I fear, something far uglier in their place.