The recent ruling by the NJ Supreme Court made me wonder:
What if the legislative branch and executive branch simply ignored this? Andrew Jackson famously said of the Supreme Court in 1830, “They have made their decision, now let them enforce it.” Nothing happened to him, and he got his way. What if a state supreme court (or even the US Supreme Court) made a ruling that told the legislative branch to take some action, and they simply refused, backed by the executive branch. The legislative branch controls the money, the executive branch controls the guns. What could the judicial branch actually DO if they were told to go piss up a rope?
I suppose that persons harmed by legislative or executive inaction would file petitions for “writs of mandamus” forcing officials to carry out their duties. If successful, there would be a court order mandating the fulfillment of the legislative or executive office. If there’s continued resistance, the officials would be in violation of a court order and subject to relevant penalties.
Or the legislature could impeach the executive official, the chief exec could fire the offending official, the people could initiate a recall in some states, and other such things.
That’s pretty much exactly why Hamilton called the judiciary “the least dangerous branch” in Federalist 78. In fact, why not post that passage:
The flipside of that is the executive and legislature generally realize that they would ultimately be undermining their own authority if they did so. Eisenhower, for example, was no fan of desegregation at all, but when the Southern states said he had no intention pof following the decision in Brown v. Board of Education, Eisenhower didn’t hesitate to send in the National Guard and the 101st Airborne.
Well, depending on how hard it is to amend the state constitution, they could just pass an amendment. BTW, this is pretty much what the VT court said, and VT went the civil union route.
Presumably, though, if the state legislature decided to disobey the SC, the plaintiffs would take it up with the SCOTUS.
Let’s take the NJ example. The NJ supreme court has told the legislative branch to either legalize gay marriage or institute civil unions. What if the legislature refuses to do either and the governor issues an executive order not to allow any marriage/civil union licenses to be issued?
This is what happened in Hawaii when its the Supreme Court ruled that the state Constitution required same sex marriages, the state changed the Constitution.
The way the New Jersey decision broke out is interesting. Four judges held that the state could not discriminate against same-sex couples in any of the legal consequences of the marriage relationship, but it could create a separately named status like a civil union. The three dissenters said that nothing less than full marriage, named that, would do. The thing is that every judge agreed that you needed to give same-sex couples equal rights.
Because the state could comply with its mandate to provide a equal marriage-like relationship in several ways (e.g. Vermont-style civil unions or Massachussets-style same-sex marriage), the Court allowed the legislature a 180 day period to choose by enacting a law providing equal rights.
Because the Court unanimously held that equal rights were required, I would be very surprised if it were to back down in the face of legislative opposition. I would suspect that the Court would hold a hearing on possible judicial remedies and issue some sort of injunctive relief. However, I don’t think that a court could legitimately impose civil unions because that would be creating a new status, a legislative function. If the legislature failed to act, I don’t see that the Court would have much choice but to hold that the state could not prohbit same-sex couples from marriages under the existing marriage laws and procedures. However, even if the Court were to come to this conclusion, it might give the legislature an additional period to enact civil unions before same-sex marriages were judicially imposed.
In response to the OP, yes, without doubt the executive and the legislative branches can do just that. Or the exeutive alone, or the legislative alone.
As has already been stated, the judicial branch simply doesn’t have any real power of its own. In response to a public official refusing to comply with a court decision, the court can–issue a writ demanding the public official comply. But that can be likewise ignored.
Let’s say the SCOTUS reaches a decision that the President wholly disagrees with. And the President refuses to comply with the decision or implement it; there’s little the court alone can do to change that (read: nothing.) Technically no one other than the executive wields executive power, the legisltive branch can’t “force” the executive to act. What they can do is use extremely strong forces of coercion. The legislature can refuse to allow the appropriation of any funds until the executive acts, or the legislature can begin impeachment proceedings to get an executive in office who will fulfill their responsibilities.
The real check on this kind of thing is the court of public opinion. If the SCOTUS reaches a controversial decision, one that the legislative AND executive branches generally oppose–yes, these two branches could effortlessly undermine said decision to the point of irrelevancy. But the uproar it would cause in the electorate would be immense. Within at most two years many House members would probably be out of a job and the process for punishing the politicians involved would begin. Since politicians realize this, it’d never get to that point. When a decision comes down, they pretty much have to grit their teeth and deal with it.
What’s a lot more effective than “telling the judicial branch to go pound sand” is for the legislative and executive branches to work together to create legislation which can be interpreted to comply with the court decision but which actually undermines the intent of the decision itself. Amendment or court packing are too perfectly valid and legal ways to undermine a court decision, also. Ignoring a judicial decision is possibly legal up until a writ of mandamus is issued, then the official ignoring the decision is failing to live up to their official duties.
In response to Billdo an effective counter wouldn’t really be for the court to just say same-sex marriage was in, because marriage licenses ar still granted by officials who aren’t actually State Supreme Court Justices, and these officials can refuse to issue marriage licenses if they wish to be particularly troublesome. ]