"Justice Kennedy is a one person constitutional convention." Brilliant!
Andrew C. McCarthy unpacks the nucleus of Gingrich's correct reading on judicial authority.
For more than a half-century, it has been monotonously proclaimed that the judges are the last word on what the law is, and, therefore, that not only the litigants in the case but the whole of society must yield to their decisions. It has become easy to forget — or to have never known — that it was not always this way. As Gingrich argues in a position paper he rolled out with a speech on Friday, there is nothing in the Constitution that stands for this proposition. It is a promotion the Warren court gave itself in 1958, in a gambit Stanford Law School dean Larry Kramer aptly described as “not reporting a fact so much as trying to manufacture one.”
In his famous Marbury v. Madison opinion, Chief Justice John Marshall reasoned that it was the task of judges to say what the law is. This was not, however, the declaration of “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” — the lavish gloss the Warren court put on it in Cooper v. Aaron.