President Barack Obama and Speaker Newt Gingrich have recently attacked the United States Supreme Court and the rule of law. However politically alluring such an approach may be, it is a cause for alarm.
In 1789, Thomas Jefferson wrote James Madison, who was introducing our Bill of Rights in Congress. Jefferson counseled, "In the arguments in favor of a [bill] of rights, you omit one which has great weight with me, the legal check which it puts in the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity."
I recently observed Jefferson's counsel firsthand. A friend who serves on the Supreme Court of Pakistan invited me to attend arguments in a case involving executive usurpation of power under their Constitution.
Aware that their positions and even their lives were threatened, the justices of the Supreme Court of Pakistan courageously ruled against President Musharraf. They were removed from office. Ultimately, they were returned to office, the president was removed, and the rule of law prevailed in Pakistan.
The Supreme Court of Pakistan understood that the rule of law is a bulwark in any free society, protecting the rights of minorities against legislative and executive constitutional usurpations. For those justices, the rule of law was worth any sacrifice.
In 1803, in Marbury v. Madison, our Supreme Court laid the foundation for the rule of law here and abroad by holding that the Court had the power to protect against constitutional violations by the executive and legislative branches of government.
Sadly, Obama and Gingrich, driven by their sincere political views, believe the Court should defer to the legislative and executive branches — the will of the majority — in constitutional matters.
Three times Obama has recently evidenced his view that the judiciary should defer to the majority will in constitutional matters.
In his 2010 State of the Union address, Obama criticized the Supreme Court for its decision invalidating a campaign finance law. He argued that the Court "reversed a century of law to open the floodgates for special interests." Justice Alito responded by mouthing the words, "Not true."
Supporting the president, then-Rep. Anthony Weiner responded, "[The Court] deserved to be criticized. If [Alito] didn't like it, he can mouth whatever they want. These Supreme Court justices sometimes forget that we live in the real world. They got a real world reminder tonight, if you make a boneheaded decision, someone is going to call you out on it."
In his recent dispute with the Catholic Church regarding the right of religious conscience, Obama articulated his view that rights are mere accommodations that may or may not be granted by the democratically elected branches of government.
Under this view, the majority was free to force a minority, the Catholic Church, to provide birth control to its employees in violation of the church's right of conscience. The Catholic Church had sufficient political clout to get a limited accommodation, but it is doubtful that a less powerful minority group would be accommodated in even a limited fashion.
Most recently, the president challenged the Court when some justices expressed constitutional concerns regarding the individual mandate — forcing individuals to purchase insurance — in a health-care law which passed by seven votes in the House of Representatives.
President Obama was "confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." He reminded conservatives that "for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law."
Obama and Gingrich, an avowed conservative, agree. In a white paper regarding the judiciary, Gingrich addressed the need to "rein in federal judges." Gingrich added that the president should "use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional."
The president's and the speaker's attacks on the Court disregard Jefferson's wise counsel that we need an independent judiciary to avoid legislative and executive tyranny and maintain our Constitution-based rule of law.
In Obama's world of expanding, unfettered governmental powers, exercised by the legislative and executive branches of government, individuals are at the mercy of the majority will. In such a world, the Constitution is little more than a piece of parchment to be viewed nostalgically during a visit to the nation's capital.
Rodney K. Smith is a distinguished professor of law at Thomas Jefferson School of Law in San Diego and a nationally recognized constitutional scholar.
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