Neither Right Nor Left, But Catholic . . . Challenging The Courts: It’s Long Overdue
By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bi-monthly]. He 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 and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. This column originally appeared in Crisismagazine.com. The views expressed here are his own.)
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The governor of Alaska, Mike Dunleavy, made national news with his novel challenge to the State Supreme Court’s decision that the state has to fund abortions. He vetoed a portion of the state’s appropriation for its judicial branch equal to the amount that the state has to provide for abortions annually because of the court’s mandate.
The ACLU has stormed into court with a suit against Dunleavy, claiming that his action threatens judicial independence. To use the words of its spokesman, he “cannot impermissibly interfere with the functions of another co-equal branch.”
Besides the ACLU’s probably not even having standing to sue to defend the claimed institutional prerogatives of a branch of a state’s government, it seems impervious to the fact the appropriation of public funds is squarely in the realm of the powers of the political branches of government and the state’s constitution gives its governor line-item veto power — not exempting allocations for the judiciary. Historically, the power of appropriation has never in the U.S. been understood as residing in courts.
While there may be a point where the cutting of the judiciary’s funding could indeed threaten its independence, this almost certainly was not the case in Alaska. The U.S. Supreme Court’s 1980 U.S. v. Will decision, which effectively held that the Constitution requires that the salaries of federal judges have cost-of-living adjustments so as (supposedly) to preserve judicial independence, was similarly unmerited.
Actually, our great government institutional problem today is the opposite of the lack of judicial independence. It’s the upsetting of the proper roles of the three branches because of the unchallenged persistent overreaching of judicial power, so that the federal courts act frequently to alter or even eviscerate 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.
Gov. Dunleavy’s action is a welcome departure from the routine acceptance by the political branches of judicial overreach and public policymaking by the courts (which they have no authority to do at all). Perhaps actions like this on the state level, concerning their own governmental institutions, will inspire Congress and, especially, presidents to face down the federal courts.
It has been commented that if Mitt Romney, when he was governor of Massachusetts, had refused to enforce the decision of the state’s Supreme Judicial Court that the refusal to issue marriage licenses to same-sex couples violated the state constitution — which, of course, was an arbitrary judgment without any basis in the state’s legal background — it might have blunted the momentum almost before it started that led to the U.S. Supreme Court’s Obergefell v. Hodges decision that claimed an equal protection right to same-sex “marriage” nationally.
Republican presidents have been notoriously inept in their handling of Supreme Court appointments. Repeatedly in the post-World War II era they have appointed justices who they have thought were reliable upholders of original intent and the constitutional tradition, but they have gone on to join the ranks of their colleagues who have used the Supreme Court to further the socio-politico-cultural agenda of the secular left. The justices appointed by Democratic presidents, with hardly an exception, have stayed faithful to the left’s views on constitutional issues.
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. Apart from the fact that even seemingly good appointees flip to the other side on key constitutional issues when they get to the Court, political pressures and the perceived imperative of compromise — Republicans in Washington typically are not known for their willingness to put up a sustained fight against the left — have often led Republican presidents to appoint people to the Supreme Court whose principles are not 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.
Then, there’s the further problem that even if some of the Court’s members have a sound constitutional philosophy they are hesitant to reverse bad precedents. They either have something approaching an absolutist view of the rule of precedent — it seems as if it’s more important for some justices to keep that rule almost inviolate than to overturn even precedents that do damage to the Constitution — or think that 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 the U.S. government. In terms at least of shaping American domestic life and American culture, the Supreme Court has been the greatest governmental force — and more often than not it’s been for the worse as with homosexualism, same-sex “marriage,” sexual mores, abortion, and electoral arrangements (the Court’s “one-man, one vote” decisions of the 1960s have been problematical in many ways).
The Court’s power has waxed primarily because the political branches have not challenged it. The principle of checks and balances, in a real sense, has not been operational as respects the Court. 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.
In truth, the Court can, and all too frequently has, rendered decisions that are unconstitutional. It should be held accountable for this — in fact, arguably the other branches have an obligation to do this. Their members take an oath to uphold the Constitution, not the Court.
FDR’s Court-Packing Plan
As I have often written, the Court needs to be directly challenged by the executive branch, by 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 5-4 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.
The way a blatantly unconstitutional decision like Obergefell should have been responded to — if there had been a different kind of president in office than Barack Obama at the time — would have been for the president to say that states that do not wish to comply don’t have to and to order 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. That would have meant that the Court’s decision would not 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 it. 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. It is to be undertaken only in the most egregious cases as a way to uphold the rule of law 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 credibility in carrying out that role when it abuses it. It is only then that the political branches, primarily the executive, should resist it.
