Writing for Public Discourse, political scientist Paul DeHart of Texas State University makes an interesting case against judicial supremacy. He rightly notes that in any particular controversy about a Supreme Court decision, the most important question is whether the Court is right about the Constitution. But DeHart then adduces several historical examples in which, whether rightly or wrongly, political actors resisted Supreme Court decisions—showing thereby that in practical terms, the claims of supremacy on the part of the Court can be defeated by determined opponents.
One wishes he had chosen more inspiring examples, however. The earliest of them, Georgia’s resistance (abetted by President Andrew Jackson) to the Marshall Court’s decision in Worcester v. Georgia, cannot be said to be an edifying example, given the direct defiance, by an actual party to the case, to what was indubitably a correct interpretation of the rights of the Cherokee nation.
DeHart also mentions the most notorious instance, in the memory of many people living today, of a defiant resistance to the Supreme Court—that of Gov. Orval Faubus of Arkansas. It should be clear that DeHart is employing this example without endorsing Faubus’s rectitude. And he is right that in practical terms, the desegregation ordered by the Supreme Court in 1954 and 1955 was not effectuated in much of the country until the Congress passed the Civil Rights Act a decade later. But again, the example seems a rather alarming and lawless one. In 1957, the Little Rock school board—the party in official authority in an ongoing litigation—was taking steps to comply with a federal district court’s orders pursuant to the Brown decisions of 1954 and 1955, and Gov. Faubus intervened on his own initiative to prevent the parties to the case, by main force, from reaching a resolution satisfactory to both. This is not, shall we say, a very good model to follow—even if one thought Brown was wrongly decided, which DeHart certainly does not.
In between these two examples, DeHart mentions a third: Ableman v. Booth, an 1859 case concerning the execution of the federal Fugitive Slave Act of 1850. Devoting a couple of brief paragraphs to this case, DeHart concludes by saying: “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.”
But this is a misreading of Taney’s Ableman opinion. Yes, this was the chief justice responsible for the monstrosity of the Dred Scott decision, two years earlier. And yes, the Ableman case involved the truly awful Fugitive Slave Act of 1850. But nothing could be clearer than that Taney’s unanimous Supreme Court was in the right, and the Wisconsin Supreme Court was in the wrong. There was no basis in federal or state law for the high court of a state to issue a writ of habeas corpus to a federal marshal, much less to a federal district court, demanding the liberty of a man held for a federal crime, and Taney was right to slap down the defiant Wisconsin court for its presumptuous, groundless highhandedness, which had even extended to outright resistance to the U.S. Supreme Court’s power to review its disposition of a federal-law question on a writ of error.
More importantly, Taney did not “create the doctrine of judicial supremacy” in Ableman. DeHart’s evidence is this quotation: “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.” But here is a fuller measure of the context in which this quotation appears:
Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required [Taney has previously referenced the Article VI oath expected of all state public officials], it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws; and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.
Placed in proper context, Taney’s claim to decide a constitutional question “ultimately and finally” extended only to this: that in a controversy over the meaning, validity, and enforcement of federal laws entrusted to the federal judiciary to carry out (as was the case with the Fugitive Slave Act), an intervening state judiciary cannot have any decisive authority, which must instead belong to the federal judiciary. As Taney noted, the Wisconsin judiciary can have no more habeas authority over federal officers and courts in Wisconsin than it can have over Michigan officers and courts in Michigan. And if a state’s high court holds a federal law unconstitutional—a legitimate possibility that federal law had fully anticipated since the first Judiciary Act—then it must submit to final review and determination of the question by the Supreme Court of the nation, or else we will have federal law enforced in some parts of the nation and not in others, depending on the vicissitudes of state judges’ opinions. That is not the Constitution the states ratified.
On this last point on which Taney was so adamant, he spoke for a clear constitutional principle embedded in the Judiciary Act of 1789, and repeatedly invoked by his great predecessor John Marshall: the simple enforcement of the supremacy clause of the Constitution’s Article VI. And it is a principle that bears not at all on any question of “judicial supremacy” as against the other branches of the federal government. Indeed, in the passage above, Taney is making no claim that even bears much on the power of judicial review, let alone judicial supremacy. Elsewhere in Ableman, Taney refers to “the duty of the courts of the United States,” when confronted, in a case they must decide, by federal legislation beyond Congress’s power to make, “to declare it unconstitutional and void.” But he goes no further than that, and certainly never claims a greater authority over constitutional interpretation than the other coordinate branches of the federal government.
No, for all his many faults, Roger Taney did not “create the doctrine of judicial supremacy” in Ableman v. Booth. Though something like this doctrine was pronounced by Stephen A. Douglas in his 1858 debates with Lincoln, its jurisprudential contours developed much later, and it would be 99 years before it was openly claimed in Cooper v. Aaron—against the pretensions of Orval Faubus, ironically enough.