Newt Gingrich's position paper, "Bringing the Courts Back Under the Constitution," is a timely and thoughtful exposition on the proper role of the judiciary and the perceived need to rein in the power of the courts to make unconstitutional judicial rulings that, he contends, the Legislature and Executive are too willing to accept as binding.  The paper argues that the unwarranted premise of judicial supremacy in the exposition of constitutional law has compromised national security (Boumediene v. Bush, 2008), assaulted religious freedom (Everson v. Board of Education, 1947), or undermined state sovereignty and American customs and values (Roper v. Simmons, 2005).

Speaker Gingrich is not alone in expressing doubts about the theory of judicial supremacy in matters of constitutional law.  Indeed, as he points out, the mistrust of an over-mighty judiciary was one of the cornerstones upon which the republic was founded, by those who had "suffered under tyrannical and dictatorial British judges."  Leading members of the current judiciary, notably Chief Justice John Roberts and Justice Antonin Scalia, have been vocal critics of judicial supremacy in their opinions, according to Gingrich, who goes on to cite Jefferson, Lincoln, and Roosevelt in support of his thesis that a reassertion of executive and legislative branch powers is required to check and balance the overweening might of the judiciary.

Regardless of one's view on the specific matters raised in Speaker Gingrich's paper, I find it hard to take issue with this general argument:

A judicial branch that is largely unaccountable and not subject to checks and balances can - and does - routinely issue constitutional rulings that threaten individual liberties, compromise national security, undermine American culture and ignore the consent of the governed.

But if his principal thesis is palatable to many, it is Gingrich's prescription for correcting the perceived imbalance that has caused the greatest controversy.  His proposal to allow Congress to police judicial decisions, if necessary by compelling judges to appear before Congress to explain their decisions, or even by simply relieving them of their positions, has been decried by many on both the left and the right as being, in the words of Republican presidential candidate Ron Paul, "a real affront to the separation of the powers."  Forcing liberal-leaning justices to square their stance on controversial issues such as abortion or gay marriage with the tenets of the constitution is a tempting proposition, but it does not take a great leap of imagination to foresee the difficulties that would be created by such a formidable weapon in the hands of a liberal administration.  If judicial reform is to have any hope of success, I believe a much more nuanced approached is called for.

If one were looking for candidates for judicial reform, one could scarcely do better than begin with the courts of the State of New York, surely the poster child for judicial overreach.  Here one will routinely find judges whose ignorance of the law is outmatched only by their willingness to repudiate it if it inconveniences them.  I have witnessed judges on many occasions shooting from the hip to issue rulings on critical motions without bothering to read a single page of the briefs before them, suspending the rules of discovery on a whim, refusing to enforce subpoenas, ignoring whole sections of the CPLR, and sanctioning litigants for some trivial infraction of legal protocol while failing to sanction others whose wholesale abuse of the legal process clearly warranted significant fines, or even incarceration.  I have experienced a Supreme Court justice issuing a ruling that he knew had already been deemed unlawful by the Appellate Court in a controlling case, but who nonetheless scornfully advised me to appeal his ruling if I didn't like it (which I did, reversing him unanimously on appeal, in record time).

The problem is simply that there are no adverse consequences for judges who misconduct proceedings in this way.  Nor is there any kind of effective judicial oversight in New York State.  The Bar Association operates more or less as a trade union for attorneys, protecting and exculpating even those whose incompetence or negligence is so self-evident that it would result in serious jail time if they were practicing another profession.  It would require an attorney to commit a capital crime in broad daylight in front of a dozen witnesses to elicit even the hint of a sanction from the NYS Bar.  Much the same can be said of the Commission on Judicial Conduct, which nominally investigates complaints of judicial misconduct but which in practice does anything but that.

Irritating as such judicial misconduct and overreach may be, Speaker Gingrich's proposed remedies are too drastic a realignment of the delicate checks and balances of competing branches of government in favor of the legislature and executive.  What is required instead are more limited measures to curb the greatest excesses of judicial activism and misconduct, while preserving the independence of the judiciary to the fullest extent possible, as now.

The principal means of remedying judicial overreach in the lower courts quite rightly rests with the Appellate Courts.  Judges are deterred to some extent by the concern than their unlawful rulings may be reversed on appeal; but the deterrent value may fade over time, and increasingly so as a judge nears retirement age.  I would propose a two-tiered approach to strengthening that deterrent value.  The first would be to allow the Appellate Court some latitude to impose sanctions on lower courts whose judgments are, in the opinion of the superior court, issued in defiance of settled law that the lower court was aware of, or should reasonably have been expected to know.  Such sanctions would be limited to removing the authority of the lower court to hear certain types of cases, for a specified period of time, or until the judge concerned had re-sat and passed qualifying examinations pertaining to the relevant sections of the law.

The second prong of the deterrent would be the automatic disqualification of judges who are overturned too frequently on appeal.  An appropriate penalty might be, say, to suspend a judge for a defined period of six to twelve months after the third successful appeal decision against him in the course of a twelve-month period.  One might also consider a lifetime limit on the total number of successful appeals, after which the judge would be required to undergo retraining and/or reelection.

I believe that the humiliation factor alone in these simple measures would be a considerable deterrent to judges whose hubris would otherwise continue to run unchecked.

Such measures would have no value in the context of the Supreme Court, of course.  I would instead propose the following protocol to alleviate some of the worst effects of judicial activism at the level of the highest court.  Firstly, Congress could stipulate that no decision of the Supreme Court shall become a binding interpretation of constitutional law unless it is unanimous.  A single dissenting opinion would be sufficient to limit the effect of the ruling of the court to the specific case in question.  Thus, for example, the legitimacy of voter ID laws would have to be decided on a state-by-state and case-by-case basis, unless the decision of the court in one of the cases were unanimous.  The second element of the proposed protocol would cover court decisions that were unanimous.  Such rulings would not automatically become settled constitutional law, as at present.  Instead, Congress would be required to vote on the Court's interpretation of the law and, if passed by simple majority, effectively incorporate it into the Constitution.  Thus, only rulings that had both the unanimous assent of the Supreme Court and the majority assent of Congress would become settled constitutional law. 

I believe that these modest proposals represent a more practical, yet still effective, means of recalibrating the checks and balances between the judiciary and legislative and executive arms of government.

Jonathan Kinlay has a Ph.D. in economics and has held positions on the faculty at New York University Stern School of Business, Carnegie Mellon, and Reading Universities. www.jonathankinlay.com