Conversations with the Courts: Is Newt Gringrich Right?…(but for the Wrong Reasons)

 Peter Dunne

In recent weeks, much has been made of the various attacks  GOP presidential candidates have launched upon the federal judiciary. Term limits, Senate hearings and even impeachment have all been touted as possible methods to reign in our supposedly “out of control” courts system.

The movement to curb judicial power currently has no greater champion than Newt Gringrich. Riding high in the polls, Mr. Gringrich seeks not so much to restrict the power of judges as to simply ignore it. He has suggested that should he become President, he may refuse to enforce court orders which are, in his opinion, not faithful to the Constitution.

Mr. Gringrich’s words have outraged many progressives (and quite a few members of his own party too!).  This is understandable seeing as much of his ire has been directed towards traditional liberal causes, such as abortion and the separation of church and state. In the past, these issues have often turned to the federal judiciary as a protector of last resort. The fact that Mr. Gringrich has singled out Cooper v Aaron – a case in which the Supreme Court held that States cannot ignore Brown v Board of Education – as the high water mark of judicial power grabbing only adds salt to the wound.

But if we put aside the opportunistic (and frankly troubling) way in which Mr. Gringrich has presented his comments, can we find anything of merit in his general ideas? Is there something to be gained from the different powers of Government engaging in a “grand conversation”?

The notion that a Supreme Court might not be the absolute final arbiter in matters of Constitutional Law is not that radical an idea in many countries outside of the United States. In Canada, procedures exist which allow legislatures to temporarily disapply provisions of the Charter which they believe the Courts have incorrectly (or perhaps more appropriately) undesirably interpreted. This is not fundamentally different from what Mr. Gringich is proposing (ignoring decisions of the Court). But in Canada, this procedure is perhaps less controversial, probably because it is perceived as furthering representative democracy rather than the narrow concerns of partisan politicians.

Last Thursday (December 15th), the European Court of Human Rights (ECtHR) issued its long awaited decision  in Al Khawaja v. United Kingdom. The case centered around a dispute between the Court, the British Government and the UK Judiciary as to whether there should be an automatic exclusion of hearsay evidence. The ECtHR had initially found that there would generally be a violation of the right to a fair trial where such evidence is admitted. This however was rejected in Britain, and by its controversial Horncastle decision, the UK Supreme Court sought to explain how British law puts in place sufficient safeguards as to render a general ban disproportionate. In its decision, the European Court agreed. The President of the ECtHR, in an accompanying opinion, spoke of how he had seen great value in conversing with the different powers at the national level.

Of course, nobody would suggest that Parliament or the Executive should be allowed to dictate to the Courts (and, in reality that appears to be what Mr. Gringrich is attempting to do). However, judges can never truly be fully removed from public opinion and the democratic will. Perhaps greater engagement with the other branches of government may mean that when difficult decisions have to be made, as they always do, the Courts might be able to claim an increased legitimacy for their opinions.

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