There’s been considerable buzz about Newt’s dissing of the courts. Here, here and here are three not entirely random examples. I’m annoyed that some critics think it unnecessary to quote what he actually said or to provide context. The closest I can readily come now is this.

When I first heard of Newt’s comments, I thought, “he has half a point, and a venerable precedent, but this is demagogic campaign material” (or something that distills to that).

I’m not going to try to whitewash what he said. I’m not going to try to track down the exact quote. I’m instead going to utter a truth that too few people know: Courts decide cases.

Huh?! Whiskey Tango Foxtrot?! What’s unusual about that?

Well, let me digress a minute. I caught all kinds of flack a few years ago when our local newspaper editorialized that the Bill of Rights was the heart of the Constitution and I replied – accurately, and I stand by it still – that the heart of the Constitution was the establishment of our polity: three branches, separation of powers, how Congressmen and Senators were to be elected and all that boring stuff.

I then made the mistake of visiting the paper’s website, where the self-confidence is high, the IQs incredibly, depressingly low. I found myself roasted there (by people who couldn’t have discovered fire on their own) for being right-wing (a little lame, but reality-based) and stupid (utterly wrong).

Well, just as the Bill of Rights has captured the imagination of people who couldn’t tell you what the “Bill of Rights” was, let alone any of its history, but who are confident that “like, free speech and freedom from religion and stuff” are the heart of the constitution, so has precedent and constitutional law captured the imagination of the public as being what courts do.

Wrong, wrong, wrong. Courts decide cases.

What do I mean by that? First, that there has to be a beef between/among two or more people. If there isn’t, you can’t get into court. You and your buddy can’t go to the court and say, “Hey, we were wondering about the meaning of Indiana Code 30-5-3-4(b) and wondered if you could explain it.” One of our problems  nationally has been to put too much stock in court decisions where the parties were, if not in collusion, sharing a lot of presuppositions that were dubious. Think, for instance, of the recent spate of liberals refusing to vigorously defend laws they don’t like — Proposition 8 in California, DOMA at the Federal Level. Excuse me, but I’m not going to prostrate before a decision where one of parties threw the game, (“Say it ain’t so, Jerry.”)

Second, that most case are not appealed and not reported. They set no “precedent.” But after the time for appeal has run, the judgment is final and precludes most re-opening of the dispute between the parties. There’s no precedent set. There’s no constitutional law invoked or made.

Third, let me illustrate with some abbreviated history. When the United States Supreme Court (you do know that each state has a Supreme Court too?) decided the notorious Dred Scott case, it became a bone of contention between Lincoln and Douglas, and on June 26, 1857, Lincoln set forth his position:

And now as to the Dred Scott decision. That decision declares two propositions—first, that a Negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points. Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.
He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?
Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”
We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

There you have it: “Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise.”

Lincoln gave absolute deference to the Supreme Court’s determination of poor Dred Scott’s fate: “Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?” (That’s called a rhetorical question, you denizens of newspaper comboxes, and the implied answer is “Nobody, stupid!”) Dred Scott was, more’s the pity, a slave.

But Lincoln did not bow to the precedent, the court’s indication “to the public how other similar cases will be decided when they arise.” Rather, he promised to seek overruling of the precedent.

So far, so good. Few who understand jurisprudence would disagree.

Now I’m going to take it one step further, into territory where people with IQs higher than the Farenheit thermometer on an August Hoosier day might disagree. I think that when an elected official vows to uphold the constitution – and they all do – it is legitimate to ignore a precedent – a prediction of how similar cases will be decided henceforth – where the official has a deep-seated and defensible view of the constitution contrary to what the precedent implies.

The vow, after all, is to uphold the Constitution – not to bow to the United States Supreme Court’s interpretation thereof, let alone to the interpretation of some lower court.

I thought there was a hint in Newt’s original remark, now lost in a fog of bombast, that he might actually understand that point. And I thought of the Dred Scott precedent.

But whether or not Newt gets it, you now should, gentle reader.

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After I wrote this, and even after my first “dawn’s early light” revision of something I “put to bed” last night (I inserted the requirement of a real legal beef), Newt got a defense on the editorial pages of the Wall Street Journal. E.g.,

Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It’s unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich’s.

I’ve got a problem with that. Courts already explain their decisions, officially, in writing. That’s why they call them “opinions.” That’s why one Judge/Justice may write an “opinion” that “concurs in the result” but offers a materially different rationale. I fear the only reason for asking judges to explain their decisions to Congress is to badger and grandstand.

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