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Judge Mental

Why court-bashing is out of control.

Newt Gingrich’s attack on judicial independence—in particular, his call for Congress to subpoena judges and force them to explain their rulings under threat of arrest—is widely viewed as one of the reasons his now-moribund presidential campaign jumped the shark. Both conservative and liberal pundits were alarmed by Gingrich’s assault on the concept of judicial review, and rightly so.

But, if Gingrich’s judge-bashing was extreme, it was not an isolated phenomenon. Recently, for example, Michele Bachmann took to after Ruth Bader Ginsburg recommended that post-Hosni Mubarak Egypt use the South African constitution as a model, rather than the much older U.S. one: “Unfortunately, Supreme Court Justice Ruth Bader Ginsburg doesn’t believe in the importance of the U.S. Constitution,” Bachmann wrote, preposterously.

More than at any point in recent American history, judge-bashing is today an accepted part of political discourse. And, while conservatives may be the main culprits, liberals aren’t blameless. If we aren’t careful, we may be sliding toward a future in which neither conservatives nor liberals will accept the legitimacy of legal rulings with which they disagree.

IN THE post-Warren Court era, Republicans have generally been more inclined than Democrats to launch overwrought attacks on judges. A classic example came during the 1996 campaign, when Pat Buchanan gave a speech called “Ending Judicial Dictatorship.” The speech was ghostwritten by William Quirk, a law professor and co-author of the book Judicial Dictatorship. In the book and in the speech, Quirk quoted from Thomas Jefferson’s writings questioning judicial review and endorsed Theodore Roosevelt’s proposal that voters be allowed to overrule some Supreme Court decisions.

The Gingrich campaign’s white paper on the judiciary strikes many of the same notes as the speech Quirk wrote for Buchanan. But, while Gingrich quotes from some of the same Jeffersonian passages as Quirk, his white paper also includes some surprising sources that weren’t available in 1996: articles by liberal scholars on behalf of popular constitutionalism. In the past decade, there has been an explosion of writing by liberals who subscribe to this school of thought—which questions the idea that the courts have exclusive authority to interpret the Constitution and holds that, when courts ignore the constitutional views of the people, the results are not necessarily good for liberals. One of the leading theorists of this movement is Larry Kramer, the dean of Stanford Law School. In his white paper, Gingrich quotes extensively and sympathetically from Kramer’s 2004 book, The People Themselves.

To be clear, as a card-carrying popular constitutionalist, I think it’s a valuable movement. Regardless of whether you believe the courts should thwart the constitutional views of the people, it’s hard to deny that, when they have done so, they’ve often provoked popular backlashes followed by judicial retreats.

The problem is that the rise of popular constitutionalism has coincided with the rise of a political culture in which attacks on individual judges are multiplying. The result is that the popular constitutionalists’ criticism of judges for second-guessing democratic decisions is increasingly showing up in the political arena—where it sometimes takes the form of reasonable critiques, sometimes takes the form of anti-judge demagoguery, and sometimes treads a fine line between the two.

Figuring out where to draw this line is not easy. Sometimes, the line is clearly crossed, as with Gingrich’s claim that, “if the court makes a fundamentally wrong decision, the president can in fact ignore it.” In other cases, the boundary is harder to discern. Consider President Obama’s 2010 State of the Union, when he challenged the Court’s decision in Citizens United while six of the justices sat in front of him. “With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Chief Justice John Roberts clearly believed that some kind of protocol had been violated. “I think anybody can criticize the Supreme Court,” he said later, but, “on the other hand, ... there is the issue of the setting, the circumstances, and the decorum.”

Did Obama go too far, as Roberts suggested? I don’t think so. Our greatest presidents have criticized the Court, including Abraham Lincoln and Franklin Roosevelt, who did so during his 1937 State of the Union. And Obama was careful to acknowledge “all due deference to the separation of powers” before launching into his attack; like Lincoln and Roosevelt—but unlike Gingrich—he was making clear he would obey the decision with which he disagreed.

But, if Obama’s criticism of Citizens United was legitimate, others on the left have made more troubling arguments. “I hope Anthony Kennedy is happy,” wrote Elie Mystal in a post at Above the Law, a widely read legal blog. “Again, point out to me a Supreme Court justice who didn’t know the Citizens United ruling would disproportionately favor Republicans, and I’ll point to a liar.” This is a dramatic allegation that seems intended to delegitimize the Court. Kennedy’s ruling may have been clueless; but, in the absence of evidence to the contrary, one must assume it was offered in good faith.

Some liberal politicians have been similarly extreme. In 2010, Democratic Representative Peter DeFazio of Oregon said that he was “investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn’t be a judicial activist and he wouldn’t overturn precedents.” Last year, Democratic Representative Chris Murphy of Connecticut, outraged about Clarence Thomas’s ties to conservative donors, argued that “there should start to be some real investigations as to whether [he] can continue to serve as a justice on the Supreme Court.”

Meanwhile, the most prominent critic of Citizens United has been Stephen Colbert. His central stunt—setting up a super PAC—has been funny and illuminating, a clever way of highlighting the ruling’s drawbacks. But the limits of his approach were clear during his recent interview with retired Justice John Paul Stevens, who wrote the greatest dissent of his career in Citizens United. Instead of allowing Stevens to explain his reasoning, Colbert mocked the 91-year-old justice and cut off his answers. (When asked whether he regretted any decision in his long career, Stevens gamely joked, “Other than this interview?”) Colbert’s attack on the Court works brilliantly as comedy; but, by blurring the line between entertainment and constitutional criticism, he is arguably both parodying and exacerbating the climate of judge-bashing.

Of course, judges on both the left and the right have sometimes contributed to the current situation by unnecessarily interfering in political debates. That said, when politicians and pundits attack judges on personal or partisan grounds, rather than legal ones, they are clearly helping to create a climate that devalues judging as a whole. Rather than congratulating themselves for marginalizing Gingrich, conservatives and liberals might pause to ask whether the problem of judge-bashing runs deeper than the bombast of one presidential candidate.

Jeffrey Rosen is legal affairs editor of The New Republic. This article appeared in the March 15, 2012 issue of the magazine.

Correction: Due to an editing error, this article originally misstated the date of Michele Bachmanns comments about Ruth Bader Ginsburg. They were published this year, not last year. We regret the error.