There can be only one. (Reuters)
Many presidents, including the icons Abraham Lincoln and Franklin Roosevelt, have taken actions that the U.S. Supreme Court would later rule unconstitutional. Lincoln's disdain for the Dred Scott decision is well known, and as president he ignored a court decision on martial law. Roosevelt sought, through legislation, to "pack" a Supreme Court that had overturned several New Deal laws. But not even Andrew Jackson and his campaign to remove tens of thousands of Indians to lands west of the Mississippi despite a Supreme Court ruling affirming tribal sovereignty went so far as Newt Gingrich has proposed to do.
If Gingrich managed to overcome the odds and take up residence in the White House, he has repeatedly made plain that he would openly defy Supreme Court decisions on a broad number of issues. In fact, it seems, on any issue he as president disagreed with. At a candidate forum held Wednesday by Personhood USA, Gingrich was at it again:
"The president interprets the Constitution as president," Gingrich said. "If the court makes a fundamentally wrong decision, [the] president can in fact ignore the courts."
To the cheering anti-choice audience, the implication was clear. Roe v. Wade would be a dead letter in a Gingrich administration. Gingrich did not say how ignoring the 39-year-old ruling might make a practical difference. Perhaps he would send federal marshals or mobilize the National Guard to shut down clinics and arrest abortion providers. Arrests, after all, are how he says federal judges he disagrees with should be handled.
Lock up, for instance, any Supreme Court justices who concur on a ruling that foreign terrorism suspects have a right to challenge their detention in court:
"I fully expect as president that there will be several occasions when we will collide. The first one, which is actually foreign policy, the Boumediene decision which extends American legal rights to enemy combatants on the battlefield is such an outrageous extension of the court in to the commander in chief's role.
"I will issue an instruction on the opening day, first day I'm sworn in, I will issue an executive order to the national security apparatus that it will not enforce Boumediene and it will regard it as null and void because it is an absurd extension of the supreme court in to the commander in chief's (authority)."
Gingrich's attack on the courts got its most comprehensive airing at last October's Value Voters Summit of social conservative activists. As Ian Millhiser pointed out, self-described historian Gingrich got many of the facts wrong in his profoundly extremist speech. In effect, he challenged the whole concept of judicial review established more than two centuries ago in Marbury v. Madison. Without actually naming it, he excoriated the unanimous 1958 Supreme Court decision in Cooper v. Aaron that ruled Arkansas officials had no right to defy school desegregation carried out as a consequence of Brown v. Board of Education.
More than half a century after Jim Crow got its comeuppance, Gingrich is still arguing a stance that replicates the Southern Manifesto. But even that document of 1956 signed by a fifth of Congress endorsed only "lawful means" to resist desegregation. Gingrich proposes outright outlawry by the highest executive in the land. Of course, when the president does it, that means that it is not illegal.
Fortunately, Gingrich won't get a chance to implement his version of the divine right of kings from the Oval Office. It would be encouraging, however, if he didn't get such wild applause from the audience every time he announces what he would do after putting on the crown.