Conservatives have been complaining for years now, usually in reaction to such decisions as Roe v. Wade, that judges have arrogated to themselves more power than they were constiutionally intended to have. Liberals got on board in 2000 with Bush v. Gore. It seems that increasingly large segments of the populace believe that courts are making decisions that are not theirs to make–“making law instead of interpreting it” is the common complaint.
For example, we conservatives (yes, I am one) routinely complain that with Roe v. Wade, the Supreme Court “struck down the abortion laws of all 50 states.” That certainly sounds like a horrid abuse of power to me. But lately, I’ve got to thinking: what power? Why does anyone have to listen to the courts? How, exactly, did SCOTUS force states to repeal their laws against abortion? Did they send their secret SCOTUS police around to each state capital, force the legislature to convene an emergency session, and hold them at gunpoint while they removed their laws from the books? What would have happened if a state had refused to amend its laws?
Suppose the governor and legislature of my home state, Pennsylvania, woke up tomorrow morning and decided they didn’t care what SCOTUS says. The legislature drafts a law saying “no abortions shall be performed in the state of Pennsylvania. Performing an abortion is a felony and shall be punished by 10 years in prison.” The governor agrees to enforce this new legislation. The appropriate law enforcement agencies immediately go out and shut down all abortion clinics, and arrest any physcians who continue to perform abortions after the new law is drafted. Does SCOTUS have any recourse whatsoever? I assume the only thing that could happen is another Roe could sue the state and, if she lost in all state courts, continue to appeal until she reached a federal court, which would presumably agree with SCOTUS’s precedent and rule that Pa. may not ban abortions. But then we’re back to where we started. So what if they rule that way? Can they force some Pennsylvanian doctor to abort the girl’s baby? Can they send the National Guard to “conquer” Pennsylvania and squash our little rebellion? What power, if any, do courts really have?
(Please don’t turn this into an abortion debate. I used Roe because it’s one of the most famous examples. Substitute another case if you like. I really want to know how courts can enforce their decisions beyond the finite parties limited by the particular judgement.)
It’s the Executive Branch’s job to send in the National Guard to enforce Supreme Court decisions. The National Guard wouldn’t be forcing a doctor to perform an abortion but prevented local law enforcement from behaving illegally by preventing doctors from performing abortions. The would be no need to relitigate the issue. By the way, it appears you’ve misunderstood the way the appeals process works. You don’t get to appeal in federal court unless there is a federal issue at stake.
Living under the rule of law means that government officials generally obey the law. Once they cease to uphold their Constitutional obligations, we’ve got a serious breakdown in the system.
Yes, the army seems to be a pretty effective tiebreaker. As does cutting off the spigot of federal funds, and under our current system of taxation, etc., most any state activity is or can be alleged to be dependent on the federal spending power. And the federal courts, from the district court level on up, have broad-ranging power to sanction (penally and civilly) any party to a litigation, or any person disobeying a federal court order.
So, arcite, for one concerned like you that the S.C.'s (or other fed. tribunal’s) jurisprudence is doctrinally unfounded, the solution of ignoring it isn’t readily workable (at least not while the odds remain so in favor of their constitutional interpretation carrying the day by force of arms or the power of the purse).
the other posters are exactly correct – it’s an understanding between the branches with regard to the separation of powers: the legislature passes the laws, the courts interpret the laws, and the executive is bound to enforce them (whether they want to or not). this understanding, combined with the president and legislature’s oath to uphold the constitution, binds the executive and legislative branches to enforce the rulings of the supreme court. and throughout american history, there have been numerous examples of govermental branches either defying or threatening to defy the supreme court’s rulings.
for example, after brown v. board of education, arkansas’s governor faubus refused to desegregate little rock’s schools, so the national guard was sent in to enforce the rights of little rock’s minority students in accordance with the supreme court’s decision.
another example is that after the supreme court ordered nixon to turn over the watergate tapes, he toyed with the idea of refusing for a long time before eventually succumbing to pressure from both outside and within his administration.
for some interesting reading on a related subject, you might try looking into the history of the supreme court case of marbury v. madison. it’s credited as one of the cases that institutionalized judicial review in US jurisprudence. but more relevant to our discussion, there was the very real threat that if the court decided the issue the wrong way, the executive branch would have just ignored the ruling.
Something like this can be founbd here in California, where in San Francisco, Oakland, and Santa Cruz (among others, I’m sure) facilitate medical marijuana, opposing the federal gov’t and the California DEA (granted, this is a differnet arrangement of authorities).
Exactly why Hamilton called the judiciary “the least dangerous branch”. They don’t have the executive’s power of the sword or the legislature’s power of the purse. Instead, they rely on the public trust of the integrety of their office.
Also, don’t forget the good ol’ U.S. Marshals, instrumental in the practical enforcement of many court decisions.
Executive department officials promise to see that the laws are faithfully executed. Once a court decides what the law means then it is up to the executive to see that it is faithfully executed.
The one serious case I know that runs counter to this was Andrew Jackson’s refusal to enforce the Court decision concerning the Cherokee nation.
The one serious case I know that runs counter to this was Andrew Jackson’s refusal to enforce the Court decision concerning the Cherokee nation
Jackson’s comment, If I remember it correctly, was:
Mr. Marshall has made his decision–now let him enforce it…
The chilling implication here, for modern seperation of powers buffs, is to be found in the ongoing Bush assertion that the designation of “enemy combatant” status is totally within the perquisites of the commander-in-chief, and exempt from judicial review.
Hypothetically, even if the string of Bush losses were to continue right up to the supreme court level, the same logic could obtain to vindicate a refusal to obey an order to permit, say, Jose Padilla to speak to his lawyer.
At such a juncture, the only remedy would be the rather clumsy, slow, and unlikely process of impeachment.
Just speculation. Say, f’rinstance, the Supreme Court came up with a totally bizarre interpretation of a law, which was clearly, in the opinion of the President and Congress, totally at odds with the intent of the makers of that law. Would the Executive Branch still be duty-bound to enforce that interpretation of the law. I have no historical examples in mind, not sure if there are any, the tripartite division of powers under the US constitution, and the potential for conflicts inherent in that division, just fascinates me.
Fair enough. Hamilton was an idealist, which arguably always carries a certain amount of naivete. You could make the case that his statement is the equivalent of saying that between a cobra, a black mamba, and a rattlesnake, the rattlesnake is the “least dangerous viper”.
I can see the point he was trying to make, though, that unlike the other two branches, the judiciary is without the inherent power to enforce its decisions.
Isn’t california having that problem with medical marijuana?
i.e., the SCOTUS has struck down marijuana possession for medical use as illegal, but the California supreme court allows its usage. So what happens is medical marijuana users in California get along good with the country & city police, but are raided by the DEA.
I guess you could do that, have states buck federal & supreme court rulings (i am not a lawyer, so this is a guess) if the people voted on it, the politicans were behind it and the state supreme court upheld it. But the FBI and other federal organizations would still arrest you the same way the DEA arrests california marijuana possessors.