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We Are Already Defying The Supreme Court

Above photo: Lincoln being sworn in by Chief Justice Taney. Library of Congress.

The risks of calling on politicians to push back against the court must be weighed against the present reality of a malign judicial dictatorship.

The idea of disregarding the U.S. Supreme Court—simply ignoring its decisions—has become a flash point. “Americans will not tolerate defiance of the institution and the rule of law,” remarked one conservative law professor, irate about the possibility that President Joe Biden or other political officials might engage in such behavior. Who has defied the Supreme Court in the past? If leading examples include Andrew Jackson the ethnic cleansing populist or George Wallace the Southern segregationist, the answer has to be: no one good.

Recently, when two left-leaning professors, Aaron Belkin and Mark Tushnet, called for a modest and partial form of disobedience in response to the mounting damage of Supreme Court precedents, conservatives rained opprobrium on them. Disregarding a judgment of the Supreme Court is “a fast track to tyranny,” if not “thuggery” pure and simple, the right raged. The rule of law depends on compliance with the justices’ commands.

Yet liberals did not exactly rally to the cause of disobedience. If anything, many seem even more committed than ever to their own anxieties, considering how crucial obedience has been (at least according to liberal orthodoxy) to advancing civil rights in the face of sometimes recalcitrant political forces. The recent disciplining of the Alabama legislature, after it pushed back on a federal court decision invalidating its racially gerrymandered system, provides a case in point.

Conservatives and liberals alike, then, have contributed to a popular narrative of a “norm of compliance” across U.S. history, a narrative that functions to make disobedience seem unthinkable. But this narrative is false. It obscures the reality of ordinary noncompliance that has, past and present, defined the scope of judicial authority.

Opposition to the Supreme Court has occurred in myriad forms. Feigning horror at the idea is a con, and a pernicious one at that. To pretend like there aren’t multiple styles of noncompliance gives the impression that resistance is beyond the pale. This, in turn, prevents us from seeing how noncompliance has already escalated, and from grasping lucidly the possibility and the stakes of taking it further.

Presidents have not openly defied a federal court order since the turn of the twentieth century, but the record of open presidential defiance goes back to the beginning of U.S. history. And it is morally complicated.

In Marbury v. Madison—the 1803 decision widely, if erroneously, understood to have established the power of judicial review for federal courts—Thomas Jefferson credibly threatened to defy any judicial order instructing his secretary of state to install opposition party member William Marbury as justice of the peace in Washington, D.C. (Jefferson also reportedly promised retaliation, including but not limited to judicial impeachment.) Almost thirty years later, Andrew Jackson purportedly refused to assist with enforcing the Supreme Court’s order to release a state prisoner in Worcester v. Georgia, the case associated with the apocryphal quotation, “John Marshall has made his decision, now let him enforce it.” And three decades after that, in Ex parte Merryman, Abraham Lincoln famously defied a judicial order issued by Chief Justice Roger Taney to release a suspected secessionist from federal custody.

But this form of confrontation subsided. In the twentieth century, Franklin Delano Roosevelt twice threatened defiance: first in response to a series of court challenges to his decision to take the country off of the gold standard, then when his use of military tribunals for alleged Nazi saboteurs was questioned. The Supreme Court gave way in both instances. No president has challenged the court in this manner since.

Whether or not these examples are “chilling,” in conservative professor Jonathan Turley’s words, they show that open defiance of federal court orders by presidents has become a rarity. Acknowledging that flagrant challenge to judicial authority is the exception, though, is not the same as conceding strict presidential (or, for that matter, congressional) compliance as the rule. Focusing on the most flagrant episodes of defiance ignores everyday, ordinary noncompliance.

Ordinary noncompliance takes different forms, including legalistic ones that circumvent orders under the cover of obedience. It is common for policymakers to push back against judicial decisions by using workarounds. For example, ever since the court declared racial quotas unconstitutional in Regents of the University of California v. Bakke (1978), selective state universities have used “holistic” assessments of applicants to approximate the same racial and ethnic compositions that the use of quotas would’ve reached. Those institutions appear ready to do the same going forward—at the justices’ invitation, seemingly—using “personal statements,” notwithstanding the court’s even harsher renunciation of affirmative action in Students for Fair Admissions, Inc. v. University of North Carolina. (So too private universities operating under supervision of the Department of Education following Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.)

Other times, when courts make judicial enforcement unavailable, officials rely on political enforcement. In Immigration and Naturalization Service v. Chadha (1983), for instance, the court splashily declared the use of legislative veto provisions unconstitutional. Congress mostly ignored the decision, continuing to enact such provisions and passing single-chamber and even committee-level resolutions purporting to block executive action. The executive branch has continued to comply not because those resolutions are enforceable in court, but because Congress retains power over the president and the administrative state through oversight and appropriations.

Yet another strategy is for officials to haggle with courts over the terms of judicial demands. As Yale law professor Nicholas Parrillo describes, when courts order agencies to do something (as opposed to merely refrain from doing something), agencies frequently respond by calling the demand infeasible. Hoping to avoid visible noncompliance, courts are then drawn into a negotiation with the agency over what it must do and, more often, how long it has to comply. In a federal district court case, for example, the Department of Health and Human Services was ordered to give clearer notices of benefit denials to Medicare recipients. The agency ultimately complied, but only after six years of delays, modifications, and clarifications to the order. The presiding judge lamented the agency’s “stonewalling,” typical “in these cases.”

Lastly and most strikingly, administrative officials sometimes defy judicial orders outright, though without the fanfare of Lincoln or FDR. Law professor Jennifer Lee Koh, for example, has identified multiple instances of noncitizens being deported despite “the existence, or anticipated entry, of a judicial order” prohibiting that action. While Koh notes cases going back as early as 1923, she argues that anecdotal evidence suggests an “ominous uptick” of such deportations during Donald Trump’s administration. Conversely, the Department of Homeland Security shielded some 2,000 noncitizens from deportation in a 2015 case despite a court order prohibiting such “benefits” for “childhood arrivals” under President Obama’s DACA program. In neither instance did the president tout publicly his administration’s defiance. But it took place both times.

The reality, then, is that presidents and other officials push back against judicial orders with some regularity. In extraordinary moments, “transformative” presidents defy the Supreme Court frontally as an overtly political (and politicizing) tactic in a public contest over who gets to say what the law is. Far more often, that same contest plays out more privately and discreetly, as largely unknown bureaucrats contest or minimize judicial instructions and, in so doing, negotiate the contours and limits of our “norm of compliance.”

Taken together, the ongoing practice of both extraordinary and ordinary noncompliance suggests that judicial authority in the United States is not absolute. Rather, it exists within “politically constructed bounds,” as Harvard law professor Richard Fallon puts it. And thankfully so, Fallon insists, since the choice is not between the “rule of law” and its absence, as some institutionalists suggest. Rather, it is between judicial dictatorship and political struggle. To illustrate the point, Fallon imagines a Supreme Court order that instructs the president to invade Iran, citing the constitutional duty to protect the United States from “national enemies.” Such an order should and (hopefully) would be ignored, Fallon reasons. Compliance would be morally disastrous and in the service of a plainly fabricated legal requirement.

While Fallon’s hypothetical is hyperbolic for now, real-world examples abound that are only slightly less troubling. This past term, in Biden v. Nebraska, the Supreme Court ordered Biden not to liberate millions of Americans from the yoke of student debt based on what judicial moderate Justice Elena Kagan called a “made-up” interpretive doctrine. Similarly, in West Virginia v. EPA the year before, the court used the same flimsy rationale to make a preemptive strike on federal climate regulation. In both cases, and in many others, the Supreme Court ordered the federal government to perpetuate human misery based on legal assertions that were tenuous at best and outrageous at worst. Yet even liberal critics continue to suggest that open defiance of such decisions, as opposed to the opposite, would be alarming.

If a strict norm of compliance with judicial orders is neither desirable nor practiced, why do liberals continue to equate defiance with “constitutional crisis”? As Parrillo describes it, the resilience of the myth of total submission to the Supreme Court is attributable partly to the strategic behavior of judges. By adjusting the terms of judicial orders to align with what government officials are willing to do, courts preserve the appearance of compliance through the offering of preemptive concessions. Just as important, though, is the willingness of political branch actors to keep contestation of judicial authority out of sight. By laundering noncompliance through bureaucracy and legalism, Congress and the president help sustain the juristocratic fiction that rule of law means obedience to courts.

For many institutionalists, the commitment to maintaining that fiction follows from the fear that a loss of public faith in courts, and specifically the Supreme Court, would be calamitous. In his testimony to Biden’s Supreme Court Commission, for example, Harvard law professor Noah Feldman opined that, given the “evolution” of our constitutional culture, only the court enjoys the “institutional legitimacy” to protect the “rule of law” and “democracy” amid partisan pressure. Similarly and more bluntly, former U.S. District Judge Nancy Gertner, a member of the commission, cautioned that if the public were to lose “respect” for the court’s decisions, “we really are all in trouble.” Biden, a “staunch institutionalist,” has expressed similar sentiments, warning against reforms to the court that could “politicize it, maybe forever, in a way that is not healthy.”

Whatever the motivation, the willingness of Biden and others to obscure noncompliance with judicial instructions has the practical effect of limiting the contest over who actually gets to say what the law is to a private negotiation among elites. The reality of give and take is not scary; in fact, it has been our practice since the beginning. In this case, the only reason for the pretense of a norm of strict compliance is the belief that the pretense itself serves a powerful political function, even when contradicted by political reality.

What is that function? The political theorist Judith Shklar argued that a certain noble lie—that politics consists of following rules—keeps the system from descending into chaos or violence. But it would seem that fictions of compliance exist to transfer authority over law away from democratic and popular control—something that apparently liberal elites find it in their interest to do. A world in which judges are above challenge only when they serve the designs of the people’s law and not otherwise remains, for many, too horrifying to contemplate.

While Biden and other institutionalists remain committed to the narrative of compliance, that commitment has proven vulnerable in recent months to popular and especially electoral pressure. In the weeks leading up to the Supreme Court’s student loan decision, for example, activists, along with progressive elected officials like Alexandria Ocasio-Cortez and Ayanna Pressley, insisted that Biden have a backup plan ready to implement in the event of an adverse decision. Advocates demanded that Biden and his team act “swiftly and boldly,” in contrast to the administration’s lethargic reaction to . Within hours of the ruling, the president delivered his response, calling the court’s decision a “mistake” —one that made him “a little bit angry”—and insisting that the “fight” for debt cancellation was “not over.” To the surprise of many, he added that his Department of Education would pursue cancellation immediately using different statutory authority. The president clarified that this “new path” was “consistent” with the Supreme Court’s decision. Amid other rhetorical escalations, Biden drew praise from several progressives for “refusing to acquiesce” to this most recent judicial power grab.

The political stakes of the president’s response were made apparent by a bizarrely heated exchange over comments by NYU law professor Noah Rosenblum. Speaking with a CNBC reporter, Rosenblum praised Biden for “striking back against the court” and, more importantly, for framing the issue “clearly and simply” rather than hiding behind “mystifying legalese.” In response, emeritus Harvard law professor Laurence Tribe called Rosenblum “dead wrong” for suggesting that Biden was “defying” the court. Former Fourth Circuit Judge (and later Boeing general counsel) Michael Luttig piled on, remarking it was “important” that Rosenblum (a mere “assistant” professor, Luttig underscored) “be corrected,” and that no “serious thinker” would characterize the president’s response as an act of defiance.

In the conversations that followed, institutionalists debated what exactly would count as defiance, with Tribe insisting the label be reserved for ignoring a specific order in the vein of Ex parte Merryman. Others, like Rosenblum’s colleague Richard Pildes, extended it to mean disregard for a court’s legal reasoning in subsequent cases, in the vein of Dred Scott. All agreed, though, that what the president was proposing fell safely on the side of compliance. It was simply too disturbing to acknowledge, either to themselves or to the public, that Biden’s action was at least partly political retaliation.

The fight over what counts as defiance is instructive partly because it shows how much public discourse in this area consists of contestable claims being presented as dogmas. Tribe, for example, takes for granted that defiance of a judicial order would trigger a constitutional crisis, whereas limiting the legal significance of a decision to its facts would merely be the president exercising independent constitutional authority. But a clear instance of compliance to some would be a sacrilegious transgression to others. The Supreme Court, after all, famously rejected the idea of order-specific obedience in the Warren Court decision of Cooper v. Aaron, declaring that officials who have taken an oath to uphold the Constitution are thereby bound by the court’s reasoning as well as its orders in specific disputes.

Or consider the more modest position that a ruling that declares some policy unlawful is consistent with the readoption of that policy using different legal authority. In Biden v. Nebraska, Chief Justice John Roberts concluded that the Higher Education Relief Opportunities for Students (HEROES) Act did not permit Biden’s loan cancellation program because, if Congress had intended to grant the president such sweeping authority, it would have done so “more clearly.” Because the administration had chosen not to defend the program by appeal to the Higher Education Act, as initially urged by activists, the court said nothing explicit about that potential legal basis. Yet it is hard to believe the case would have come out differently if it had, given the conservative majority’s naked hostility toward the use of executive power for progressive ends. The reasoning in the chief justice’s opinion, then, implies that it was an act of defiance in a very straightforward sense for Biden to propose, in response, a near identical program, despite having overwhelming reason to believe the court would have rejected such legal authority at the time of the initial ruling. And to the extent the administration is hoping for a different outcome—if it is at all—it is not because it thinks its new rationale for loan forgiveness is better. Rather, it is because the cost of a second decision declaring cancellation unlawful is one that the court—already in the midst of a legitimacy crisis—might not be willing to bear.

More fundamentally, it is clear that legalistic distinctions like the one between a court’s “judgment” and its reasoning do not correspond to anything morally interesting. For example, many rightly worried that former President Trump would refuse to enforce the law against polluters and tax cheats. Yet in other circumstances, liberals found such nonenforcement self-evidently permissible, recommending that Biden decline to prosecute those who violated District Court Judge Matthew Kacsmaryk’s order prohibiting the distribution of mifepristone throughout the country.

The same, of course, would be true in more extreme cases, such as the hypothetical example of defying the order to invade Iran or Lincoln’s real-life defiance of Chief Justice Taney—both of which are morally laudable and yet fall on the side of defiance, no matter how narrowly defined. Challenging judicial authority openly and directly, it turns out, is sometimes a moral imperative, not an unforgivable sin. What all this suggests, then, is that defiance, both as a notion and as a tactic, is a site of moral judgment and political struggle—and necessarily so, since, as with all legal concepts, how we should think about defiance depends on our practical ends.

One might nonetheless retain some anxiety that there is something vaguely (or not so vaguely) authoritarian about inviting a president in particular to ignore the judiciary. In evaluating any such anxiety, two points warrant attention.

First, one must remind oneself repeatedly that defiance of courts is not the same as, and does not entail, the defiance of law. In the student loan case, the Supreme Court rejected the president’s cancellation plan by appealing to an intellectually bankrupt interpretive doctrine. Who, exactly, is defying the law in this situation? Especially in a historical moment in which courts invent limits on statutory authority left and right, presidential noncompliance with egregious decisions (at a minimum) constitutes a defense of law and, more specifically, democratic lawmaking. Whether defiance is cause for alarm or celebration in a specific instance will depend, of course, on what the law permits or requires in addition to the morality of the policy advanced. But as cases like Biden v. Nebraska and others show, judges have no special access to legal interpretation, let alone moral truths.

Second, even if the president were capable of saying what the law is just as well as the Supreme Court (or Congress), there is something especially concerning about giving the final say to a charismatic, or not-so-charismatic, individual. Even at the height of enthusiasm for administrative governance, the architects of the modern administrative state were, as Rosenblum documents, attentive to the experience of European fascism and the ills of “personalized rule.” As partial remedy, Congress divided, and continues to divide, power within the executive branch, ensuring that power is exercised by multiple officials rather than the president alone. Obedience to judges has ironically made the situation worse in recent years, as the Supreme Court has waged war against the independence of agency officials—independence granted explicitly by Congress but deemed unconstitutional based on historical fiction.

Worries about cults of personality are not baseless, and it is generally healthier for a democracy to have power rest with multimember bodies rather than strong individuals. For this reason, critics of judicial authority in the United States have, in recent years, tended to advocate stripping courts of varying amounts of authority and giving that authority over to Congress. That preference for empowering Congress rather than the president is entirely reasonable, correct even. Yet a major difficulty with that recommendation is that, owing to structural constraints ranging from partisan gerrymandering and Senate malapportionment to the persistence of juristocratic ideology and class interest, Congress has thus far proven both unable and unwilling to seize power away from the court, as is its constitutional prerogative.

The puzzle for reformers, then, is how to bring about the conditions in which Congress can and will claim its position as primary interpreter of the law. Creating those circumstances will partly involve continuing ideological work in spaces where juristocracy is a choice, and a bad one. Much more powerful, though, are concrete demonstrations of democratic actors, as opposed to courts, expressing the final word as to what the law is on issues that matter. Under current conditions, at least, it may be that democratizers can exert pressure more successfully on a comparatively vulnerable executive official or body.

Opponents of more open and radical presidential defiance must also grapple with the reality that pressure must be channeled somewhere. In a period of “polycrisis” and domestic decline, the Supreme Court’s placing of “made-up” constraints on an already dysfunctional system of governance has predictably and reasonably resulted in popular unrest. In some instances, the people have taken matters into their own hands, protecting reproductive freedom through popular referenda, for example. In other situations, the people—again reasonably—look for assistance from elected officials. Insofar as Congress has proven unwilling or unable to provide that assistance, it should come as no surprise that attention turns even more to our nation’s most visible elected official. Does calling on the president to push back against the court, even without Congress, come with risks? Yes. But those risks must be weighed against the present reality of a malign judicial dictatorship. At the very least, critics of defiance should concede that the choice is far from easy.

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