Mr. Gingrich’s Attack on the Courts

New York Times
Editorial
December 10, 2011

In any campaign season, voters are bound to hear Republican candidates talk about “activist judges” — jurists who rule in ways that the right wing does not like. But Newt Gingrich, who is leading in polls in Iowa, is taking the normal attack on the justice system to a deep new low.

He is using McCarthyist tactics to smear judges. His most outrageous scheme, a plan to challenge “judicial supremacy,” has disturbing racial undertones. If he is serious about his plan, a President Gingrich would break the balance of power that is fundamental to our democracy.

The plan’s centerpiece is an attack on the landmark 1958 ruling in Cooper v. Aaron, in which the Supreme Court reaffirmed that Arkansas had a duty to follow federal law. The governor had contended he was not bound by the court’s call for desegregation in Brown v. Board of Education. He ordered the National Guard to bar nine African-American students from Little Rock’s Central High School, causing violence and disorder.

For the first time in the court’s history, all nine justices individually signed the unanimous opinion. They did so to stress that the “chaos, bedlam and turmoil” caused by the governor’s refusal to obey the law was “intolerable.” Unless the court acted as the final arbiter about the Constitution’s meaning, as Marbury v. Madison instructed, chaos would prevail. It was one of the court’s most important decisions. In Mr. Gingrich’s twisted view, Congress and the executive branch have for too long cowered before the court.

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