The Witherspoon Institute - Public Discourse
Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.
Newt Gingrich’s statements about the judiciary during the December 15, 2011, GOP debate and on Bob Schieffer’s Face the Nation the following weekend ignited a firestorm over his view of American constitutionalism that has been smoldering in the media for several months now. His challenge to judicial supremacy—the idea that the Supreme Court has the last word on the meaning of the Constitution—has been much condemned, particularly because Gingrich’s argument also criticizes the declaration of judicial supremacy in the Court’s 1958 desegregation decision, Cooper v. Aaron. Ian Millhiser of Think Progress was quick to accuse the former Speaker of siding with the white supremacists of the 1950s when Gingrich first released his position paper on the judiciary in October.
Although the media’s breathless denunciations suggest otherwise, Gingrich is not the first public figure to challenge the Cooper Court’s assertion of its supremacy over constitutional interpretation. Attorney General Edwin Meese did the same in a 1986 lecture at Tulane University. Meese’s address elicited a similarly angry response from the press, especially from columnist Anthony Lewis, who made Cooper the centerpiece of his appraisal of Meese’s speech. As was the case in 1986, the debate over Cooper in the past few months has been confused, epitomized by the New York Times’ recent suggestion that Gingrich’s critique of Cooper has “disturbing racial undertones.” The Times and others misunderstand the history and law of that famous case. Those who argue that the Supreme Court is not the ultimate arbiter of the Constitution’s meaning need not deny the fact that Cooper was rightly decided; they can and do celebrate the courage of that opinion.
Cooper v. Aaron came to the Supreme Court under extraordinary circumstances, the drama of which is matched by... Read this important article at thepublicdiscourse.com ...