One branch of government has the guns.  Another has the purse.  And another has nothing but trust, which is why it’s the Least Dangerous Branch.  That also makes it the easiest to bully, and Newt Gingrich’s career, since he held the job of minority whip in Congress, was built on being a bully.  He’s good at it.

And that doesn’t make him wrong.  From the WSJ Law Blog :

–Fox News anchor Megyn Kelly began with Newt Gingrich.

Kelly: You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?

Gingrich: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.

(APPLAUSE)

There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have…

(APPLAUSE)

I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.

We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

(APPLAUSE)

Kelly: These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.

Gingrich: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.

Kelly: Something that was highly criticized.

Gingrich: Not by anybody in power in 1802.

(LAUGHTER)

(APPLAUSE)

Gingrich: Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.

It sounds insane at first blush, but it’s not.  It’s not quite right, but it’s not insane either.  The “checks and balances” of the other branches of government over the judiciary include the nomination of judges by the President, the consent of the Senate to judicial appointment, and the funding of the court system by Congress.  The first two suggest that the other branches pick wisely, but life tenure tends to change a person’s way of thinking. 

Certainly impeachment for bad behavior is a limit on what judges might do, but bad behavior doesn’t usually cover decisions that others think are absolutely awful.  On the other hand, the entire point of life tenure is to make sure that judges are free to make decisions based on law, without fear of ramifications for political or transitory concerns.  They can’t be removed because they anger someone in another branch with their decision, freeing them to be honest rather than appeasing.  Similarly, there’s no revote, after a while, to decide whether they’re still as excellent a choice as they appeared at first.

But is that it?  Put aside the fact that Activist Judge is an epithet tossed about with wild political abandon, and consider that it’s certainly conceivable that the least dangerous branch could, in some way that pretty much everyone agrees, be activist. Let’s say a circuit decided that they just didn’t like the Seventh Amendment any more and decided to cross it off the Bill of Rights.  What to do?

The phrase “activist judges” has become a conservative mantra, used to confuse the ignorant into believing that the judiciary’s job is to make popular decisions.  Others realize that courts “make law” all the time, filling in the blanks that legislative bodies leave behind, often intentionally so that they won’t bear the weight of their ill-conceived laws, or to provide meaning to words that are sufficiently or inherently vague that they provide inadequate guidance.   

Aside: For those who argue the “Constitution means what it says, no more, no less,” you’re neither going to grasp nor be persuaded here, so there’s no real point in my explaining this to your satisfaction.  However, I leave you with the words written by Charles Lutwidge Dodgson:

  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

You aren’t likely to appreciate this quote either, but I like it, have the ability to include it, and so I do.

Had the founders intended the judicial branch to be wholly independent, they would have provided for the courts to fund themselves.  They were well aware that control of the purse strings was a death grip, that could strangle a co-equal branch of government. 

What preserves the integrity of the judicial branch is trust.  The courts have no money of their own. No standing army, the few peashooters of the gendarmes is hardly a match for a decent tactical missile, which could destroy a politically-named courthouse in a flash.  The words of judges matter only because we trust those words.  We believe that somebody has to be honest, to rise above politics and disagreement and give us a final answer that we can trust.

If that trust is lost, or squandered, then the duty of the other branches is to use it’s power to rein in, perhaps even eliminate, the out of control branch.  In this respect, Newt is absolutely correct, the judiciary is not above the other branches, immune from violations of its mandate.

Newt is wrong, however, to suggest that Americans are in favor of pulling the plug on the third branch of government every time a ruling rolls around that doesn’t get three cheers from Georgia.  If a president tried to seriously manhandle the judiciary every time there was a decision he didn’t like, it would be the executive at risk rather than the courts.  Americans may be dumb, but they’re not stupid. 

They know they need a legal system, even if they think the current one sucks and fails to reflect their sensibilities.  They may not have great trust in the judiciary’s judgment, but nobody is comfortable with the idea of the other two branches of government without a judiciary to smack  them.

Yet the Judicial Branch of government should never be so comfortable in its existence and power to believe that it lies wholly outside the control of the People or is above the power of the other branches.  Each branch should live in fear of the others.  Each should be constantly vigilant that if it fails to retain the trust of the American people, it’s mandate ceases to exist.  The Least Dangerous Branch is just as subject to checks and balances as its more dangerous brothers.  And that’s how it should always be.

Forget the details of Newt’s plans. They’re nuts. But at its core, his point is hardly as ridiculous as one might think.  And judges need to remember that the judiciary is just as strong, and fragile, as any other branch of government.