This article first appeared online at the New York Times on October 23, 2011.
Republicans Turn Judicial Power Into a Campaign Issue
By Adam Liptak and Michael D. Shear
WASHINGTON — Republican presidential candidates are issuing biting and sustained attacks on the federal courts and the role they play in American life, reflecting and stoking skepticism among conservatives about the judiciary.
Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a “rogue” court that is “consistently radical.”
Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.
The complaints are in line with the candidates’ general opposition to federal authority. Like the elected branches of the federal government, they say, the federal judiciary has become too powerful and intrusive.
“If you want to send a signal to judges that we are tired of them feeling that these elites in society can dictate to us,” Mr. Santorum said at an event in Ames, Iowa, “then you have to fight back. I will fight back.”
Many of the candidates’ proposals concerning the federal courts would, even with Congressional backing, face daunting constitutional obstacles. Yet Congress can limit spending on the courts, short of cutting judges’ salaries, and it may well be able to narrow the jurisdiction of the federal courts in important ways.
The candidates’ criticism reflects a growing desire among conservatives for a return to a court system that they say the country’s founders envisioned.
The political calculus is similar, too. The rise of the Tea Party in states like Iowa and South Carolina has created a receptive audience for candidates who raise doubts about whether the court system is hindering the causes that these voters believe in.
“These threats go far beyond normal campaign season posturing,” said Bert Brandenburg, executive director of Justice at Stake, a research and advocacy group that seeks to protect judicial independence. “They sound populist, but the proposal is to make courts answer to politicians and interest groups.”
Mitt Romney, the former governor of Massachusetts, has so far shied away from the far-reaching criticisms of his rivals. At a conservative forum in South Carolina, he dismissed the idea of a Congressional confrontation with the Supreme Court over abortion, saying, “I’m not looking to create a constitutional crisis.”
But his rivals have shown no such reluctance in attacking a federal court system in which their side has achieved significant victories.
The Supreme Court delivered the presidency to George W. Bush, interpreted the Second Amendment to guarantee an individual right to bear arms and allowed corporations and unions to spend unlimited amounts of money in elections. And many Republicans are looking to the Supreme Court for vindication in the political battle with President Obama over his health care overhaul.
The Republican candidates have focused their anger at court rulings on social issues like abortion, same-sex marriage and the role of religion in public life. Those issues hold the potential to fire up the party’s base and to provide crucial support in the primaries.
“There’s an even more dramatic overstep on the part of the courts now,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a conservative legal advocacy group. “With the grass-roots revolution on the ground and the Tea Party movement, there’s a desire for a return back to first principles.”
“I don’t think it’s an anticourt movement,” Ms. Dannenfelser added. “It’s a purifying of the court — trying to return it to where it should be.”
Hogan Gidley, a senior adviser to Mr. Santorum, said that on the campaign trail, the courts issue plays well with “those who care about the Constitution and the legal system.” Mr. Gidley added: “They move to the edge of their chairs. They want to know what he’s going to do with the court system. It absolutely resonates.”
In attacking the courts, the Republican candidates sometimes seem to hedge their vows to remain faithful to the Constitution. Many of their proposals aimed at curtailing the power of the courts would require the document to be amended.
Section 1 of Article III, for instance, confers life tenure on federal judges, saying they “shall hold their offices during good behavior.” But Mr. Perry, in his book “Fed Up!,” wrote approvingly of proposals “to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power.”
Whatever the difficulty of achieving that change, it is not without support in legal circles. “Perry’s idea has been advanced by me and numerous other academic critics of the court,” said Paul D. Carrington, a law professor at Duke. “On this point, he is absolutely right.”
In his book, Mr. Perry also discussed allowing Congress to override Supreme Court decisions by a two-thirds vote. This too would require a constitutional amendment, assuming that the power of judicial review established in Marbury v. Madison in 1803 continues to be accepted.
But the Marbury decision, which gave the Supreme Court the last word in interpreting the Constitution, has its critics. Mr. Gingrich, for instance, told the Values Voter Summit in October that “judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”
Mr. Gingrich, joined by Mrs. Bachmann and Mr. Paul, has called for limiting the federal courts’ ability to hear certain kinds of cases. Whether that would be constitutional is hard to assess.
“The question of the extent of Congress’s power to control the jurisdiction of the federal courts is one of the most contested and unsettled in constitutional law,” said Vicki C. Jackson, a law professor at Harvard.
Mrs. Bachmann and Mr. Paul have taken an aggressive stance. “We have it within our authority to decide what judges can rule on and what they can’t,” Mrs. Bachmann said in Iowa in April. Mr. Paul has written that “Congress could statutorily remove whole issues like gay marriage from the federal judiciary.”
Section 2 of Article III of the Constitution provides that the Supreme Court generally “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Section 1 of the article suggests that Congress may have even more power over the lower federal courts: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
Still, the suggestions from Mr. Gingrich and Mr. Santorum concerning the Court of Appeals for the Ninth Circuit, which hears cases from federal district courts in nine Western states, are particularly bold. In February, Mr. Santorum told a Tea Party group in South Carolina that he would “sign a bill tomorrow to eliminate the Ninth Circuit,” adding: “That court is rogue. It’s a pox on the western part of our country.”
Criticism of the Ninth Circuit as too liberal is commonplace, and calls to split it into two or more parts have been floated for decades. But the idea of leaving the western third of the nation without a federal appeals court of its own appears to be a new one.
And although the Constitution forbids Congress from cutting federal judges’ pay, Mr. Gingrich has proposed ways that the power of the purse could be used to discipline that court.
“Congress can say, ‘All right, in the future, the Ninth Circuit can meet, but it will have no clerks,’ ” Mr. Gingrich told the Values Voter Summit. “ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ”