Very interesting article from The Stanford Daily with short recap on multiple instances where people challenged Supreme Court decisions. See author information at the end.
Resistance to the Supreme Court’s authority is nothing new. In 1803, the landmark case of Marbury v. Madison established the Court’s power to review the constitutionality of actions by other branches of government. But the case also highlighted the Court’s inherent weakness. The lawsuit asked whether President Thomas Jefferson’s new Republican administration had to honor the last-minute appointment of a justice of the peace by the outgoing Federalist president. Chief Justice John Marshall knew that if the Court ordered the Jefferson administration to install Marbury as justice of the peace (as he’d been promised by John Adams), Jefferson would simply refuse to follow the ruling. So Marshall wrote an opinion declaring that courts have ultimate authority to interpret the Constitution, but declining – on technical legal grounds – to actually order Jefferson’s administration to grant Marbury his position.
Resistance to the interpretive authority of the Supreme Court has occurred regularly ever since. After an adverse decision in Worcester v. Georgia (another Chief Justice Marshall classic), President Andrew Jackson is said to have responded, “John Marshall has made his decision; now let him enforce it!” In the 1950s, the Court outlawed school segregation in Brown v. Board of Education, then had to issue another opinion in Cooper v. Aaron calling for “the obedience of the States,” after southern states asserted the power to ignore Supreme Court decisions with which they disagreed. Cooper asserts judicial supremacy – that is, the power of the Supreme Court to serve as the ultimate authority over the meaning of the Constitution, binding on both the federal government and state governments.
These cases of resistance demonstrate the judiciary’s weakness as an independent branch of government. Judges must rely on other government officials – in the executive or legislative branches of the federal government, or in state or local governments – to implement and enforce their orders. When those other divisions of government disagree with the Court’s decision, the Court may be forced to curtail its own actions (as in Marbury). Or the Court might hope that it has enough support among other divisions of government to carry out its directives (as in Brown, which was enforced by President Eisenhower’s deployment of the Army’s 101st Airborne Division to ensure the African American students’ safety, and later bolstered by congressional passage of the Civil Rights Act).
Of course, the judicial branch has substantial powers to encourage compliance. For one, lower courts may hold steadfast objectors in contempt of court. Such specific contempt orders are almost certain to be enforced, therefore helping to bring intransigent officials into compliance. That’s how Kim Davis wound up in jail. Courts also have the lesser-known ability to fashion other kinds of solutions. For instance, the judge in Kentucky could have forbidden Davis from issuing marriage licenses, effectively transferring her power to another state official or ordered the county to withhold some portion of Davis’s salary attributable to marriage-licensing.
But the fact remains that these solutions are, in the end, words on a page. When push comes to shove, somebody other than a judge must escort the holdout to jail. Thus, at bottom, the Court’s decisions are constrained by the views of other branches and levels of government. Unless the Court stays within the bounds of what other government officials consider plausible, legitimate views, it is powerless to carry out its holdings. So while the Court – comprised of unelected, lifetime-tenured judges – is often vilified as undemocratic, it is ultimately accountable to the people and their representatives.
The Supreme Court (and conventional wisdom) would say that everyone does have to follow the Supreme Court’s interpretation of the Constitution. But challenges to that view – from history, legal scholars, and modern Kim Davises and Ted Cruzes – abound. And despite the controversy and occasional firestorm, that debate is probably a good thing. It reminds us that the Court, with “neither force nor will,” takes part in an “ongoing dialogue between and among the branches of Government.” In the end, it’s your democratically elected representatives who shape what vision of the law is followed.
Brittany Jones is the president of the Stanford Law Review. Alex Twinem is one of the Stanford Law Review’s managing editors. Michael Qian is one of the Stanford Law Review’s executive editors. Danny Kane is one of the Stanford Law Review’s senior editors. Contact them at bjones2 ‘at’ stanford.edu, atwinem ‘at’ stanford.edu, mfqian ‘at’ stanford.edu, and dkane ‘at’ stanford.edu.
Below is a comment that was left to this article, and my reply to it.