Gingrich v. the Courts

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Anyone who doubts that Newt Gingrich is a bomb-thrower should head right over to “Bringing the Courts Back Under the Constitution,” a position paper that is part of the Newtonian revolution also known as the 21st Century Contract with America. The New York Times was not exaggerating when it editorialized a few days ago that what Gingrich has in mind would make the Supreme Court into “a puppet of the political branches.”

Religion is exhibit A in Gingrich’s case for enabling Congress and the president to ignore and overturn federal court decisions constitutional and otherwise. Much of what bothers Newt’s civil religious soul is Establishment Clause jurisprudence forbidding prayer in public schools and official acknowledgements of America’s Creator god. But the remarkable thing is that with all the huffing and puffing about the Supreme Court’s war on religion, Gingrich does not so much as mention the single greatest blow to religious liberty it ever struck–Employment Division v. Smith.

In that 6-3 decision, the majority opinion Court laid down a brand-new principle of religious jurisprudence: that a claim that the government has violated one’s free exercise of religion cannot be advanced against any neutral law of general applicability. Thus, to take a current example, there is now no free exercise right for ministers to be exempt from federal law banning discrimination in hiring.

So profoundly did Smith threaten freedom of religion that the largest coalition of religious bodies in American history–left, right, and center–joined together to lobby successfully for passage of the Religious Freedom Restoration Act (RFRA), which Bill Clinton enthusiastically signed into law in 1993. RFRA instructed the Court to evaluate free exercise claims according to “strict scrutiny,” its highest standard for weighing the government’s interest against a constitutional right or principle. In 1997, the Court overturned that effort to dictate its rules in Boerne v. Flores.

Now this history is well known to Gingrich. As minority whip in the House of Representatives, he was responsible for rounding up Republican votes for RFRA, and he was speaker of the house when Boerne came down. Indeed, among the remedies he proposes for disciplining the federal courts is passage of legislation establishing rules for the them to follow. Why does His Self-Importance omit this important chapter in the history of congressional efforts to influence constitutional jurisprudence–one where he himself played a significant role?

It’s obvious enough. The author of Smith was none other than conservative American idol Antonin Scalia, lauded in “Bringing the Courts” as “among the most vocal opponents of judicial supremacy in their opinions.” Right. So Gingrich points to the need for presidential and congressional action should the Court, this term, overturn or restrict the “ministerial exception” in Hosanna-Tabor v. EEOC. But God forbid that he blame the real perpetrator, when the heroes of religious liberty in Smith were those paragons of liberal judicial supremacy, Justices Blackmun, Brennan, and Marshall.