The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.
Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.
Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”
On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.
In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.
Could vs. Should
This argument obviously turns on the conflation of cannot with may not. Any intelligible claim that resistance to decrees of the Supreme Court is sheer nonsense logically must rely upon a normative or de jure claim. By installing a de facto proposition as the major premise of their argument, the proponents of judicial supremacy are able to claim no more than this: resistance to the Court cannot be made because it will not succeed. Resistance to the Court is wrong or nonsensensical just because such resistance is futile.
This claim sounds very much like the arguments of the Greek Sophist Thrasymachus or of the Athenians in Thucydides’ “Melian Dialogue.” As the Athenian representatives said to the Melian delegation, “Nature always compels gods (we believe) and men (we are certain) to rule over anyone they can control.” In short, might makes right. The Supreme Court cannot be resisted because it has power; justice is of no consequence here.
Making the major premise of the argument for judicial supremacy a de facto rather de jure claim renders the argument invalid. Even if it’s true that resistance to the Supreme Court will not succeed, it does not follow that such resistance cannot or ought not be undertaken. But even if the argument were not invalid, the major premise—that the Supreme Court cannot be successfully resisted—is demonstrably false.
The Weakest Branch
The proponents of judicial supremacy ignore the numerous instances in which Congress, the president, and the states have all very successfully resisted Supreme Court decisions—sometimes tragically, sometimes quite legitimately. According to Alexander Hamilton, in Federalist no. 78, the Supreme Court is the least dangerous branch of the federal government because it is far and away the weakest branch. It cannot even enforce its own decisions.
Advocates of judicial supremacy often make John Marshall’s opinion in Marbury v. Madison the cornerstone of their case. But everyone knows that one reason for the decision in Marbury—that section 13 of the Judiciary Act of 1789, which expanded the Supreme Court’s original jurisdiction to cases like Marbury’s, was unconstitutional—was precisely because Marshall knew Jefferson and Madison would (very successfully) defy any order from the Court to deliver Mr. Marbury’s commission to him. Marshall did not want the institutional weakness of the Court on full display, and so he rendered a decision that did not require Madison or Jefferson to do anything.
But let’s set the politics of Marbury to the side and consider a few instances in which the decisions of the Court were ignored by the coordinate branches of the federal government, by state governments, or by local governments and individuals.
In the case of Worcester v. Georgia, the Supreme Court held that Georgia law was not binding within the Cherokee Nation. Consequently, missionaries working with the Cherokee and not from Georgia could not be required by the state to take an oath of allegiance to Georgia. Thus the Court ordered Georgia to release two missionaries who had been arrested, tried, convicted, and imprisoned for refusing to swear allegiance to the state of Georgia.
The State of Georgia refused. In his annual message, Governor Wilson Lumpkin railed against the “fallibility, infirmities, and errors of this Supreme tribunal.” Shortly thereafter, the missionaries stopped pursuing legal proceedings in federal courts to compel Georgia’s compliance to the order of the Supreme Court that they be released. They did so precisely because of the Supreme Court’s failure to compel Georgia’s obedience to its decision, which President Jackson had no inclination to enforce. Instead, they appealed to Governor Lumpkin for a pardon, and Lumpkin granted their request.
This story clearly illustrates the inability of the Court to enforce its decisions—especially when the national executive sided with Georgia against the Court. In the Worcester case, the Court certainly lost.
Northern Resistance to the Fugitive Slave Act
In 1859, the Court tendered a decision in Ableman v. Booth that, if we simply read the holding and opinion of the Court, would seem to support the argument for judicial supremacy.
In 1854, northern abolitionist Sherman Booth was arrested by US Marshal Stephen V. Ableman for violating the Fugitive Slave Law of 1850. Booth had led a mob to rescue Joshua Glover, an escaped slave living in Wisconsin whom Ableman had taken into custody. A reluctant jury convicted Booth of violating the federal law and sent him to jail. The Wisconsin Supreme Court, however, issued a writ of habeas corpus compelling Booth’s release. Ableman, in turn, sought a writ of error from the Supreme Court to get the action of the Wisconsin high court reviewed. The Supreme Court obliged and found against the Wisconsin Supreme Court. Ableman ultimately rearrested Booth and sent him back to jail (only to have President Buchanan pardon Booth six months later).
Chief Justice Roger Taney composed the Court’s opinion. Taney declared the Fugitive Slave Act constitutional, asserted that the states must “support this Constitution,” and claimed that “no power is more clearly conferred than the power of this court to decide ultimately and finally, all cases arising under such Constitution and laws.” In short, Chief Justice Taney created the doctrine of judicial supremacy—including a rejection of the right of states to resist decisions of the Supreme Court—in the context of upholding the Fugitive Slave Law.
In spite of the Supreme Court’s ruling, active resistance of Northern states to the Fugitive Slave Act did not slacken. In fact, Northern resistance effectively nullified the Fugitive Slave Act even though the act was federal law upheld by the Supreme Court and even though the Supreme Court had declared such resistance illegal.
Similarly, President Lincoln defied Chief Justice Taney’s holding in Dred Scott that former slaves who had attained freedom could never be citizens of the United States. Over and against the Dred Scott decision, the Lincoln administration issued passports of citizenship to freed slaves—and the Court couldn’t successfully tell Lincoln to stop. It might have issued a decision, but the Court cannot impose its own judgments. It relies on the executive for that.
Modern Resistance to the Court
Lest I be accused of harkening back to a bygone era, we should consider some examples of successful resistance to the Court in more recent times. In INS v. Chadha (1983), the Supreme Court declared the unconstitutionality of legislative vetoes.
Congress paid no attention. According to leading congressional scholar Louis Fisher, thirteen years later, Congress had enacted more legislative vetoes (over 400!) than before the Court told them they could not. In short, the Supreme Court reached a decision with which Congress disagreed, and the Supreme Court lost.
The paradigm case for proponents of judicial supremacy is Brown v. Board of Education. In 1957, Governor Faubus ordered the Arkansas National Guard to prevent black students (the Little Rock Nine) from entering a previously whites-only school. President Eisenhower, however, nationalized the Arkansas National Guard to enforce desegregation. Ultimately, says Malor, “The Supreme Court’s determination trumped a state official’s personal beliefs, as contemplated by the Supremacy Clause.”
For the proponents of judicial supremacy, the story ends here, with the Court triumphing over local resistance to its decrees. But the story does not really end here. In the decade after Brown, before the passage of the Civil Rights Act, there was virtually no desegregation. The Little Rock Nine were—tragically—an exception to the rule. As Gerald Rosenberg notes,
despite Cooper v. Aaron and the sending of troops to Little Rock in 1957, as of June 1963, only 69 of 7,700 students [less than 1 percent] at the supposedly desegregated, ‘formerly’ white, junior and senior high schools of Little Rock were black. Public resistance, supported by local political action, can almost always effectively defeat court-ordered civil rights.
a decade after Brown virtually nothing had changed for African-American students living in the 11 states of the former Confederacy that required race-based school segregation by law. For example, in the 1963-1964 school year, barely one in 100 (1.2%) of these African-American children was in a non-segregated school. That means that for 99 of every 100 African-American children in the South a decade after Brown, the finding of a constitutional right changed nothing.
Partisans of judicial supremacy would have us believe that the Brown decision was effective. But, standing alone (i.e., prior to the adoption of the Civil Rights Act a decade later), this decision too was a dead letter for the overwhelming majority of states and, tragically, the overwhelming majority of African-American students.
Constitutional Republic or Non-Constitutional Oligarchy?
My point is not that individuals or states or the coordinate branches of the federal government never comply with the Supreme Court. Sometimes they do, but often they do not. Nor is my point that resistance is always acceptable. Sometimes resistance to decisions of the Court is unconstitutional, illegal, or unjust. Resistance to desegregation was both unconstitutional and unjust. It was also overwhelmingly successful.
My point is only this: If the proponents of judicial supremacy are right, then we have neither a republic nor a constitutional regime. In their understanding of the power of the Court, we have rule by an elite few—an aristocracy or an oligarchy. Moreover, if the Supreme Court has the ultimate say as to what counts as law—just because it has the final say as to what the Constitution means or requires—then these aristocrats or oligarchs are not constrained by the Constitution. Rather, the Constitution is constrained by them. And in that case we have the rule of men (and women) rather than the rule of law. Such a regime is, as a matter of definition, non-constitutional.
In a constitutional order, judges sometimes get the Constitution wrong. According to Marshall’s doctrine of judicial review, when Congress gets the Constitution wrong, its laws are null and void. In a truly constitutional order, the same goes for unconstitutional decisions of the Supreme Court. And that means the rightness of resistance, whether at the founding or now, doesn’t depend on the ability of the Court to enforce a ruling but, rather, on the answer to this de jure question: Did the Court get the Constitution right?