Constitution and Law Series #12 

What Can Be Done About Judicial Usurpation?
The President's Powers
By Timothy B. Lewis of the Constitutional Freedom Foundation

How can an out-of-control federal judiciary be reined in?  This article discusses possible, but little-used checking powers held by the executive department.

Ignoring the Supreme Court

A possibility that has been talked about in the press recently as a means of controlling the judiciary is simply ignoring the Court when it goes beyond the pale.  After all, the courts have no ability to enforce their judgments without the cooperation of the other branches of government.  As discussed in Federalist No. 81, this structural impotency is a purposeful check and balance mechanism to keep the courts within their assigned authority. ^[1]   Perhaps you are shocked by such a suggestion since you have never seen any such thing happen in your lifetime, but there are some interesting historical precedents for this which I will discuss below.  While you and I  might disagree with the political motivations behind some of the following historical events discussed in this and succeeding articles, for purposes of these articles, I want to focus on the political checking mechanisms themselves and not the reasons (justifiable or not) for their prior invocations.

President Thomas Jefferson’s Threat To Ignore The Supreme Court: Marbury v. Madison

Our first two Presidents (Washington and Adams) were Federalists who believed in stronger federal or national power.  However, Jefferson defeated Adams in a contest for a second term as President.  Jefferson favored a weaker federal government and stronger state governments. 

To get some feel for the philosophic contest between the Federalists (largely orchestrated long-term by John Marshall as Chief Justice of the Supreme Court) and the Republicans (largely orchestrated by Jefferson), consider the following to give some insights into the mindset of Marshall:

“The most immediate lesson [George] Washington learned, and imparted to his young admirer [Marshall], was the danger of self-interest and ambition when linked to localism and state sovereignty.  Judging from the letters Marshall would quote in his biography [of Washington], Washington spent nearly as much energy fighting a weak-kneed Congress and self-centered states as he did the British Army.” ^[2]

As a Revolutionary officer, Marshall struggled through the bitter winter at Valley Forge and other sufferings caused by the various state legislatures failing to send sufficient support for the war effort.  Despite a promising legal and political career in Virginia and the sentiments of many of his friends and associates favoring a weaker central government, Marshall sided with the Federalists.  Why?

“Marshall’s own answer to the question was beguilingly simple.  Looking back near the end of his life on this period of constitutional gestation, he accounted for his unwavering support of the Constitution in plain language: ‘I partook largely of the suffering and the feelings of the army, and brought with me into civil life an ardent devotion to its interests.  My immediate entrance into the state legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings, and the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.’  And so it was.  Soldiering made him a nationalist, and serving in the Virginia legislature in the 1780s confirmed what the war taught.” ^[3]

John Marshall served as John Adams’ Secretary of State.  Adams later made him Chief Justice of the Supreme Court before leaving office.  Marshall and Jefferson were cousins but were political enemies.  Knowing that the federalist administration was coming to a close, Adams sought to extend long-term federalist influence over the federal government by creating a lot of new judicial posts and filling them with loyal federalists.

R. Kent Newmyer tells us an interesting bit of history and sets the stage for the contests between Marshall and Jefferson:

“Unfortunately for historians, there were no cameras to record the deliciously ironic moment on March 4, 1801, when the new chief justice administered the oath of office to the new president.  With his hand on the Bible held by Marshall, Jefferson swore to uphold the Constitution Marshall was sure he was about to destroy....Nor was it coincidental that Marshall turned his back to the president during the ceremony.” ^[4]

“....[T]he Federal Judiciary Act of 1801....was unmistakably partisan.  The act created sixteen new federal circuit judgeships, which Adams filled with loyal Federalists....By expanding the jurisdiction of the federal judiciary, at the expense of state courts, the measure added to the already firm conviction among Republicans [Jefferson’s party] that the federal courts were being redesigned to do the work of the Federalist Party.  Republicans were confirmed in this impression by the provision of the final bill that reduced the number of Supreme Court justices from six to five, effective at the next vacancy – a provision that aimed to deprive Jefferson of an appointment to the Court that was expected to occur with the death or resignation of William Cushing.  Such blatant partisanship guaranteed that Jefferson would declare open season on Marshall and the Court.” ^[5]

Adams nominated, the Senate accepted, and the Secretary of State (John Marshall) processed the commissions for several such judges, one of whom was Mr. Marbury.  But time ran out and Mashall could not physically deliver Mr. Marbury’s and others’ commissions before Jefferson became President.  Once he came into office with his new Secretary of State, James Madison, he refused to deliver Mr. Marbury his commission.  Marbury filed a lawsuit in the Supreme Court asking for a writ of mandamus ordering the executive branch to deliver the various judicial commissions.  He was not asking the Court to hear the case under the original jurisdiction set forth in the Constitution itself, but rather, under congressionally expanded aspects of original jurisdiction granted later to the Court by an ordinary act of Congress.  This difference becomes critical to the outcome of the case.

“Original jurisdiction” means that the case would start and end in the Supreme Court.  When a court exercises appellate jurisdiction, the case begins in a lower court and is appealed to the higher court after all the witnesses have been heard, evidence produced and considered, arguments made by the respective counsel and, ultimately, a judgment rendered by the lower court.

Ironically, the man who used to serve as the Secretary of State and who failed to timely deliver the commissions in the first place, was now the Chief Justice of the Supreme Court who would hear the legal arguments relative to the case and issue a ruling.  Jefferson and Madison had totally stonewalled Mr. Marbury and the Court.  His administration refused to even show up in court to make any arguments.

Marshall was in a very delicate political position since Jefferson was obviously prepared to ignore any order issued by the Court trying to force his hand with respect to those undelivered judicial commissions. 

However, like Houdini, Marshall managed to perform a political-death defying escape from the trap set for him and do it in a way that actually strengthened the power of the Supreme Court.

In the first half of his opinion, he gave his cousin a political tongue lashing saying why the commissions should have been effective even without their physical delivery.  In the second half, he addressed whether or not the Court had original jurisdiction to hear the case. 

In effect, he said that Congress did not have the power to expand the original jurisdiction of the Supreme Court set forth in Article III of the Constitution.

After delineating the various judicial powers, Marshall focused on the following language of Article III, Section 2, Paragraph 2 :

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction.  In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Apparently the first three categories of original jurisdiction only have to do with foreigners since the Secretary of State, James Madison, was not considered to be a “public minister” for purposes of this matter – otherwise, the court would have had original jurisdiction under the Constitution to hear the case.  Perhaps Marshall took a restrictive view of this term so that he could gracefully sidestep the case since to do otherwise and rule on the case would have allowed the President a greater victory at the Court’s expense.

Marshall said that the language allowing Congress to carve out jurisdictional exceptions only applied to the Supreme Court’s appellate jurisdiction and not to its original jurisdiction which was pre-set by the Constitution itself. 

In the process, he said that the Supreme Court has the power to declare an act of Congress unconstitutional and hence, void, thus solidifying the idea of judicial review.  So after criticizing his cousin, he didn’t order Jefferson to deliver the commissions and thus, cut off Jefferson’s ability to embarrass and weaken the court by refusing to comply with its order.  Marshall outfoxed his cousin by allowing Jefferson to win the relatively small immediate political battle over the judicial appointments but in a way that would allow Marshall to win the overall philosophic war regarding federal judicial power.  After all, Marbury was simply going to be a justice of the peace in D.C. – not some high level federal judge. 

The prime point that I want to make here is that the Court was very cognizant of the political environment in which it existed and crafted an opinion that would tend to strengthen its reputation in the eyes of the public and enhance their trust in it as an institution rather than do things to imperil that trust and reputation.  Hence, it is not directly democratically controlled but it is indirectly influenced by political things going on around it.

Worcester v. Georgia (1832)

In a later case, President Jackson actually did ignore a Supreme Court order he believed to be unconstitutional.  Erik McKinley Eriksson tells us:

“the question in the case [of Worcester v. Georgia (1832)] was the right of the national government alone to regulate and control Indian territory within the states.  The [Supreme Court] upheld this right, and declared void laws of the state of Georgia which extended the jurisdiction of that state over the Indian territory within her borders.

“The state of Georgia, however defied the mandate of the Supreme Court, and President Jackson refused to enforce it, on the grounds of his opposition to the policy of depriving the states of their right to control Indian territory in their limits.  This was a blow to the right of the Supreme Court to review state laws as to their constitutionality.  It should be mentioned that President Jackson was within his constitutional rights in refusing to enforce the decision of the Supreme Court.  Ordinarily the president would naturally cooperate with the Supreme Court but to compel him to enforce the court’s decisions which were contrary to his own judgment would tend to destroy the principle of separation of powers.” ^[6]

Worcester had been imprisoned under Georgia law but despite its ruling against the State of Georgia, the Supreme Court failed to secure his release because of the President’s refusal to enforce that ruling. ^[7]

What Does It Mean To Take An Oath To Support The Constitution?

Article VI of the U. S. Constitution provides:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution....”

Since all of the foregoing public officials take an oath to support the Constitution, could they not in good conscience, refuse to obey a court order they sincerely believed to be unconstitutional as President Jackson and the various state officers did in Worcester?   Certainly we would hope that such conduct would seldom become necessary, but doesn’t our political structure set this possibility up as a potential checking function over the judiciary? 

Consider the same potential dynamic concerning judicial activism at the state court level.  Recently the Supreme Court of Massachusetts effectively forced gay marriage onto their state through their “interpretation” (i.e. judicial amendment) of their state constitution.  What if the Governor had refused to enforce that ruling citing his own oath of office to support and defend the Massachusetts state constitution?  Couldn’t he have done so in good conscience?  What could the court have done about it?  Nothing.  Couldn’t the fact that the state Supreme Court depends upon its coordinate branches of state government to enforce its rulings be viewed as a purposeful political mechanism to check abusive judicial power?

While this article explored what the executive branch can to do check the judiciary, the next article will explore congressional checking power over the judiciary.