Republican presidential candidate Newt Gingrich champions presidential tyranny, not constitutional government enforced by judicial review. He would have sided with King George III against the Founding Fathers on making judges dependent on his will alone. In the Oval Office, Gingrich would coronate himself emperor like Napoleon, and scorn subordinating the presidency to the rule of law. If you adore Russia’s Prime Minister Vladimir Putin, you would love a President Gingrich.
The crown jewel of the Constitution is a Supreme Court whose justices have life tenure and are empowered to hold unconstitutional and invalid acts of the president, Congress or the states. Otherwise, constitutional limitations would be toothless. No political body in the history of the world has ever renounced its own handiwork as illegal.
Conservative former Chief Justice William H. Rehnquist maintained that judicial independence was “the crown jewel of our system of government.” Alexander Hamilton observed in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
James Madison, father of the Constitution, defended the Bill of Rights in Congress by remarking:
If [the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
Chief Justice John Marshall explained in Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.” In 1805, the Senate acquitted (by an overwhelming margin) a sitting Supreme Court justice, Samuel Chase, of making biased and erroneous rulings. The acquittal established the time-honored principle for more than two centuries that federal judges may not be removed for alleged misapplications of law or misinterpretations of the Constitution. The remedy for judicial error is to ask the Supreme Court to overrule a misconceived precedent (which has succeeded in 200 cases), or to amend the Constitution (which has been done on five occasions to trump Supreme Court interpretations).
In sum, the Constitution requires the president or Congress to honor Supreme Court decrees in particular cases. Thus, President Abraham Lincoln, in his first inaugural address, explained that he would not defy the Supreme Court’s odious decree in Dred Scott v. Sanford holding that blacks were not citizens of the United States because defiance would breed more legal mischief than it would cure:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
When President Franklin Roosevelt sought to manipulate Supreme Court decisions through an ill-conceived court-packing plan, he was sharply scolded by Congress and the American people. His proposed legislation shipwrecked in the Senate.