Challenging the Courts: It’s Long Overdue


July 30, 2019

Governor Mike Dunleavy of Alaska made national headlines with his novel challenge to a decision by state’s supreme court, which requires the Alaskan state government to fund abortions. Dunleavy vetoed a portion of the state’s appropriation for its judicial branch: a portion equal to the amount the court requires the government to provide for abortions each year. The ACLU has stormed into court with a suit against Dunleavy, claiming that his action threatens judicial independence. To quote their spokesman, the governor “cannot impermissibly interfere with the functions of another co-equal branch.”

Now, whether the ACLU can sue to defend the institutional prerogatives of a branch of state government is dubious. But the prerogative belongs with Dunleavy in the first place. The appropriation of public funds is squarely in the realm of the political branches of government, and the state’s constitution gives its governor line-item veto power. Needless to say, there are no exemptions on allocations for the judiciary. In this country, the power of appropriation has never resided in the courts.

Our great government institutional problem today isn’t the lack of judicial independence. Just the opposite, in fact: it’s the upsetting of the proper roles of the three branches, a result of the unchallenged persistent overreaching of judicial power. The federal courts frequently act to alter or even subvert the meaning of the Constitution and its provisions, often for reasons of ideology. We have even allowed federal district courts to reach well beyond their territorial jurisdiction and issue nationwide injunctions.

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Governor Dunleavy’s action is a welcome departure from the norm of courts handing down public policy, which is entirely outside their prerogative. Perhaps local leaders like Dunleavy will inspire Congress and presidents to face down the federal courts. Just imagine how this nation’s history might have played out had Mitt Romney, when he was governor of Massachusetts, refused to enforce the decision of the state’s Supreme Judicial Court, which claimed the refusal to issue marriage licenses to same-sex couples violated the state constitution – an arbitrary judgment without any basis in the state’s legal background. Who knows? It might have blunted the momentum of a movement that culminated in the Supreme Court’s Obergefell v. Hodges decision, which established a legal right to same-sex “marriage” across the nation.

Republican presidents have been notoriously inept in their handling of Supreme Court appointments. In the post-World War II era, they’ve repeatedly selected justices they’ve thought were reliable upholders of original intent and the constitutional tradition, but who go on to side with their Democratic colleagues. All too often, “safe” conservative appointees spend their careers using the Court’s authority to further the socio-political agenda of the secular Left. Meanwhile, justices appointed by Democratic presidents stay faithful to the Left’s views on constitutional issues, with hardly an exception.

Nevertheless, Republican presidents have persisted in their belief that new appointments are the only way to change the Court and ensure that it upholds a sound view of the Constitution – that is, to maintain our constitutional tradition. But set aside the fact that even seemingly good appointees flip to the other side on key constitutional issues once they get to the bench.

Just as often, political pressures and the perceived imperative of compromise (the Washington G.O.P. isn’t known for it fortitude) have led Republican presidents to appoint justices whose principles aren’t solid in the first place. Apart from all this, even if the appointees are good, an appointment strategy requires decades to truly change the Court. In the meantime, the Court can do massive damage to the Constitution.

To further muddy the waters, even if some of the Court’s members have a sound constitutional philosophy, they are hesitant to reverse bad precedents. Many take something like an absolutist view of the rule of precedent: they evidently think it’s more important to keep that rule almost inviolate than to overturn even precedents that do damage to the Constitution. Others fear the Court’s prestige will be weakened if they overturn high-profile bad precedents. The latter view has recently been associated with current Chief Justice John Roberts.

Congress has done virtually nothing to restrain the Supreme Court’s excesses: not with its appropriation power or its constitutionally-specified power to change the Court’s appellate jurisdiction. One has to go back to the nineteenth century to find a time when Congress removed subject matter from the Court’s appellate jurisdiction.

The judiciary, completely contrary to the intent of the Founding Fathers, has long since become the preeminent branch of this country’s government. In terms at least of shaping American domestic life and American culture, the Supreme Court has been the strongest force in government. Seldom is it a force for good.

The Court’s power has waxed primarily because the political branches have not challenged it. The principle of checks and balances hasn’t really applied to the Court for decades now. Part of the problem is that an attitude has long since taken hold that the Court somehow equals the Constitution – that the Constitution is what the Court says it is. In effect, this has put the Court above the Constitution. The Court can render decisions that are patently unconstitutional, and does so frequently. It should be held accountable.

In fact the other branches have an obligation to do just that. Their members take an oath to uphold the Constitution, not the Court. Specifically, the Court needs to be directly challenged by the executive branch, the President. The historical precedents are there, and so is the track record of results.

We can go back to Andrew Jackson’s spurning of the Marshall Court’s decisions about the Cherokee Indians and removing them from Georgia. He is supposed to have said, “John Marshall has made his decision, now let him enforce it.” He couldn’t, and it wasn’t. While the removal of the tribe was unjust, it demonstrated how judicial decisions need to be enforced by the executive to have effect. Abraham Lincoln suspended the writ of habeas corpus against secessionist John Merryman early in the Civil War and refused Chief Justice Roger Taney’s attempt to overturn it. When Taney tried to cite the Union military commander holding Merryman for contempt, the soldiers under his command refused to accept notice of Taney’s order.

Then there was FDR’s well-known Court-packing plan, formulated in response to the Court’s frequent striking down of New Deal legislation during his first term. While the plan didn’t pass Congress, the Court got the message and one of the previously-opposed justices changed his position, with the result that the 4-5 votes against FDR became 5-4 supporting him. The pattern after such challenges has been that the Court goes into retreat for a generation, restraining itself from continued constitutional adventurism.

Had there been a different kind of man in the White House during the Obergefell saga, the president would have responded to such a blatantly unconstitutional decision by giving states the option not to comply. He would have ordered the U.S. Marshal Service, which carries out federal court orders but is actually an executive branch agency under the president’s control, to stand down. The Court’s decision wouldn’t have been enforced and would have been rendered, for all practical purposes, null and void.

Executive resistance to the Supreme Court is needed, but so is extreme prudence in doing so. Refusing to enforce or carry out one of its decisions should be the stance only when the decision is clearly and outright unconstitutional. This should not be the response whenever the president merely disagrees with a decision, or even when it raises troubling constitutional questions. That would be an assault on the rule of law and a ready invitation to constitutional turmoil and perhaps civil disorder.

Rather, it’s to be undertaken only in the most egregious cases as a way to uphold the rule of law – that is, when the Court’s action is effectively undermining it by violating our highest positive law, the Constitution. Further, the best historical evidence is that the Court was meant to be the main authoritative interpreter of the meaning of the Constitution and that fundamental role must not be undermined.

The Court actually compromises its own credibility in carrying out that role when it abuses it. The political branches, principally the executive, must resist the Supreme Court in order to save it.


  • Stephen M. Krason

    Stephen M. Krason is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists.

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