Paul DeHart’s recent Public Discourse essay, “The Unsoundness of Judicial Supremacy,” was a welcome call for resistance to unsound Supreme Court decisions. For at least a half century, the American republic has suffered blow after blow from ultra vires decisions of the Supreme Court and lower federal courts. Although these decisions have often prompted virulent denunciation, rarely have they given rise to serious discussion of the right or duty of public officials or citizens to resist them. Indeed, even in circles where such discussions would be most likely to arise, attacks on the courts have usually been focused on particular cases rather than on the institutional legitimacy of entire lines of decisions.
No doubt this is largely due to the fact that several generations of Americans have now been taught little more about judicial power than Charles Evans Hughes’ mistaken declaration that the Constitution “is what the Court says it is,” or textbook passages proclaiming the Court to be the ultimate “guardian of the Constitution.” It has seemed for decades as if the American people have been under some kind of hypnotic judicial spell, transfixed like the proverbial deer in headlights, awaiting the next crushing blow against American constitutional democracy, the Judeo-Christian tradition, and Western civilization itself.
DeHart’s article suggests that the tide may be turning. The Supreme Court’s decision in Obergefell v. Hodges has apparently provided what those of the past few decades have not—a spark of realization that renders conceivable to a spellbound generation the idea of an “unconstitutional Supreme Court decision” and, perhaps, proposes resistance. DeHart’s article shows that resistance to the Court’s decisions is not new, as evidenced in a number of cases dating from the 1830s through the 1990s. He rightly suggests that the only principled basis for judicial supremacy in our constitutional republic is the Thrasymachian notion that “might makes right.” Yet while Americans have resisted Supreme Court decrees throughout their nation’s history, public arguments in favor of such resistance have, in recent years, been exceedingly rare.
Matthew J. Franck rightly pointed out here at Bench Memos that some of DeHart’s examples represent inappropriate resistance to correct Court decisions—such as in the Cherokee Nation Cases—rather than appropriate resistance to incorrect decisions, and thus one wishes for some “more inspiring examples.” Nevertheless, the article demonstrates that resistance to Supreme Court decisions is neither unthinkable nor unprecedented, and might be a viable option in some circumstances.
In any event, the argument for legitimate resistance to unconstitutional court decisions should not rest fundamentally on historical instances—inspiring or otherwise—but on legal and constitutional principles and precedents.
With this in mind, I would like to reflect on an important point largely set aside in DeHart’s article. He writes:
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.
Now, it is true that advocates of judicial supremacy look to Marbury to support their cause. But are they right to do so? More on that in Part 2.
Robert Lowry Clinton is professor emeritus of political science at Southern Illinois University-Carbondale and author of Marbury v. Madison and Judicial Review (1989).