The Supreme Court and the Imbalance of Power
In a 5-4 decision, the U.S. Supreme Court ruled in June that the state of Alabama must throw out its existing redistricting map and create a new one which adds a second district with a majority black voting population. In July, the state legislature responded with a new map that ignored the Court’s ruling and maintained just one majority black district.
This is by no means the first time a Supreme Court ruling has been defied. In a 5-1 decision in Worcester v. Georgia in 1832, the Court ruled unconstitutional a Georgia law barring non-Native Americans from residing on Cherokee land without a state license. A missionary, Samuel Worcester, had been imprisoned for violating that law. The Court said that the Cherokee nation was not part of the state of Georgia and that only the United States government could make laws concerning it. The state and President Andrew Jackson refused to enforce that ruling and Worcester remained in prison.
Famously, in 1954, the Court ruled in Brown vs. Board of Education that segregated schools were unconstitutional, but most southern states refused to abide by that decision and years went by with little compliance or enforcement of the Court’s ruling.
While most Americans understand that “checks and balances”” are designed into the Constitution to keep any one branch of the federal government from gaining too much power, this does not mean that the branches are equally powerful. While Court decisions, such as Roe v. Wade and more recently Dobbs v. Jackson may give the impression of an overbearing judicial impact, the Supreme Court is the least powerful of the three branches. As Alexander Hamilton put it in Federalist #78, the judiciary “is beyond comparison the weakest of the three departments” and “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
The Executive Branch has the force of arms and the Legislative Branch the power of the purse. The Judicial Branch must depend on voluntary compliance, public acceptance of its rulings and historical tradition. In short, it counts for its power on its moral force in American life and the morality of the public. Even its contempt citations depend on the Executive Branch for enforcement.
What is at stake when federal, state or local governments – or private citizens and institutions – defy a Supreme Court ruling is the rule of law. The Alabama legislature’s decision to defy the Supreme Court may seem minor to some, but there is a larger context to consider. The same is true when liberal activists urge President Biden to ignore the Court’s decision on student loan forgiveness.
In a July 2023 poll, only 44 percent of Americans had a favorable view of the Court, down from 70 percent a few years ago. Ethics concerns around the acceptance of gifts and favors to some justices have chipped away at the Court’s legitimacy. The sense among many that courts are becoming just a political branch of government does not help.
When such factors weaken the Court’s legitimacy, challengers to its rulings are emboldened. A weak Court can be strengthened by support from the other two branches of the federal government, but if they also have contempt for the Court, the danger increases. The intensity of this danger rises to its highest when both of those branches are controlled by the same political party and both encourage disrespect or defiance of the Court.
Those who object to any court’s decision have avenues of redress, but defiance is not acceptable. Objections can be voiced at the ballot box, as they have been in some states that want to maintain access to abortion. They can be channeled into political campaigns in the hope that elected officials will mount new, legal challenges to a court’s direction, as happened in reversing Roe. They can be argued in the press and social media in the hope of shaping public opinion.
Without an independent judiciary, whose rulings are enforced even by those who disagree with them, we end up with only two branches of government, both sometimes too eager to follow public whims and ignore the Constitution. The framers of the Constitution understood this, which is why they made Supreme Court appointments for life and prevented Congress from decreasing the pay of justices as a means of pressuring them.
A president, governor, or legislature intent on increasing power will rightly see independent courts as barriers and try to weaken them. Illiberal governments have historically followed that path. The State of Israel has been facing this issue, and the actions of its elected government are already weakening that democracy.
The Alabama case may be the canary in the coal mine. If defiance succeeds, that technique may well spread – and not just at the state level. A strong judiciary is essential in a government of balanced powers. It protects the weak against the strong. Those who are strong today should not forget that they may not be tomorrow – when they will need the courts to protect them.
Photo Credit: Mark Thomas@pixabay.com
