Jeffrey Rosen: Court-Bashing is Out of Control

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

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 RedState.com 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....