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.
One reason why the prolonged assault of Michael Newdow was so troublesome is that it sought consciously to upset the implicit status quo about the role of religion in public life. Anyone who just looks at the text of the Establishment Clause—"Congress shall make no law respecting an establishment of religion” can see the danger in any rule that gives a special place for religion in public life. But at the same time, we have a long history of various ceremonial uses of religion in public life that starts, but surely does not end, with “God save this Honorable Court.”
This tension leads to real difficulties whenever anyone seeks to move the goal posts in either direction. Back in 1990, Justice Antonin Scalia in Unemployment Division v. Smith took the strong position that the use of peyote by Native American Tribes in their religious ceremonies did not constitute a free exercise of religion that had to be protected by the Constitution. Most people on both left and right understood the perils of trying to reconcile the Establishment Clause with the Free Exercise Clause, but thought that simple neutrality did not quite capture it, as Justice Scalia, mistakenly in my view, had held. There were concerted political efforts to undo that decision that met with mixed success with the pasage of the Religious Freedom Restoration Act that was struck down, and the Religious Land use and Institutionalized Persons Act, which seems to have survived. One can take all sides on this debate. But no matter how high the decibel count, no one should think that hauling Justice Scalia before Congress is a way to tackle the problem.
Newdow’s challenge was real. He is fond of saying that it would surely be unconstitutional for the Pledge of Allegiance to substitute (attention Rick Perry) “under Jesus” for “under God,” and he is surely right under current law. But the lines here are hard to draw. Indeed in my view the great danger in Newdow’s case was having any decision at all. To defeat the challenge, the Court could have easily undone some of the sensible protections of the Establishment Clause. To accept the challenge would have unleashed an uproar with major political consequences.
The question was how to head this off. There was a way. Indeed, I had some small role to play in deflecting that challenge by authoring with Neal Katyal a brief on behalf of neither party that argued successfully that Newdow did not have standing to challenge the case because he was not the custodial parent of his daughter. The argument had the virtue of being correct. It won before the Court and headed off the immediate confrontation. Many boo birds assured me that this short term diversion would only postpone the inevitable. But cooler heads seem to have prevailed and the issue has not come up again.
There is an object lesson here. Hot heads like Gingrich always let indignation get in the way of good judgment. I have many beefs with the Supreme Court. But the correct way to deal with them is to write briefs and articles, not to blow up an institution that has done so much more good for the health and stability than an agitated malcontent like Gingrich can recognize. He is a fearsome debater, but a sloppy thinker. It is a most unwelcome combination. Would that he would only tilt at windmills.