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WE ARE ALREADY DEFYING THE SUPREME COURT  
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Ryan Doerfler, Samuel Moyn
April 17, 2024
Dissent
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_ The risks of calling on politicians to push back against the court
must be weighed against the present reality of a malign judicial
dictatorship. _

Lincoln being sworn in by Chief Justice Taney, Library of Congress

 

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 _Dobbs v. Jackson Women’s Health Organization_. 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, extend
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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.

_RYAN DOERFLER teaches law at Harvard._

_SAMUEL MOYN teaches law and history at Yale._

_DISSENT is a 501(c)3 non-profit organization. We publish the very
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* laws
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* Congress
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* President
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