strikingly so.
By constitutional design the federal judiciary is authoritarian, with lower court judges bound to follow higher court rulings. Thus, any five conservatives on the Supreme Court can make the law of the land, because all lower federal judges are bound by their decisions. George Bush won the support of social conservatives in 2000 and 2004 by promising he would appoint justices who thought like Justices Antonin Scalia and Clarence Thomas, the most conservative members of the Supreme Court. Bush delivered with the nominations of Chief Justice John Roberts (who replaced the conservative William Rehnquist) and Associate Justice Samuel Alito (who replaced the moderate swing vote of Sandra Day O’Connor). Theoretically, citizens should have no concern about the political affiliation of judges whom they expect to rule fairly and objectively. As a practical matter, however, ideology does make a difference. One can now predict with a fair degree of certainty the outcome of a wide variety of legal rulings based on the party affiliation of the judge, or judges, involved in the case. A partisan judiciary does not deliver justice, and conservative Republicans are again acting as authoritarians in packing the federal courts.
As the federal judiciary becomes a legal phalanx of conservative judges, and as Congress becomes increasingly conservative, it is worth pondering what would happen if a liberal or progressive president won the White House in 2008, and refused to enforce a Supreme Court ruling. Hypothetically, say the ruling required prayer in all public proceedings or the posting of the Ten Commandments in all federal buildings. Say that liberal or progressive president claimed, “I have taken an oath that is as valid as that taken by members of the Court. The Court’s ruling violates the United States Constitution. The Court has no constitutional authority to require enforcement of such a ruling; therefore, I order the Justice Department and the federal marshals not to enforce it.” Needless to say, for a president to do so would be an extreme measure. Yet this is precisely what Pat Robertson and other Christian conservatives believe a conservative president should do, and that he should act as he sees the law, not as the high Court has seen it.[80] This, of course, is the way authoritarians think.
If this scenario were just one of Pat Robertson’s more outrageous demands, it could be safely ignored. In fact, though, such thinking is widespread among Christian and social conservatives. For example, in 1997, Chuck Colson wrote in Christianity Today about his displeasure with the Supreme Court’s ruling in Boerne v. Flores, which held that the Religious Freedom Restoration Act, passed by Congress to address the standard under which religious practices could be curtailed by government, was unconstitutional. Colson raised the question of who determines what the Constitution means: the Supreme Court, the Congress, or the president? Colson claimed that “contrary to what most Americans think, the Constitution does not give the Supreme Court final say on constitutional questions.” He further asserted that in 1803, in Marbury v. Madison, “the Court assumed the power of judicial review,” yet “three presidents have resisted Court orders: Thomas Jefferson refused to execute the Alien Imposition Act; [Andrew] Jackson spurned a Court order in a banking case; [and] Lincoln rejected the Dred Scott decision.”[81] Colson, like Robertson and others on the religious right, is seeking, in effect, to nullify Supreme Court decisions of which he does not approve. Because such arguments are being made increasingly in lengthy law journal articles, which are later cited by conservative judges, it is worth taking a look at conservative scholarship in this area, and Colson is considered a scholar by his contemporaries.[82]
First, contrary to Colson’s suggestion, the practice that is now called “judicial review” (the ability of federal courts to overturn acts of Congress) did not start with Marbury, but was already well established by 1803 and the Marbury ruling. In fact, the Court noted in Marbury that “[t]he question, whether an act, repugnant to the constitution, can become the law of the land” was to be resolved by relying on “long and well established” principles.[83] Even before the Constitutional Convention, high state courts had held legislative acts unconstitutional in several states, and references in the constitutional debates suggest that the delegates to the convention assumed federal courts would have such review authority. Members of the First Congress certainly understood that Supreme Court justices would decide constitutional questions. For example, Abraham Baldwin of Georgia stated during a debate of the First Congress, when speaking of the judiciary, that “it is their province to decide upon our laws; and if they find them unconstitutional, they will not hesitate to declare it so.” During the same debate, Peter Sylvester of New York added, “It is certain that the Judiciary will be better able to decide the question of constitutionality in this way than any other. If we are wrong, that can correct our error.”[84] Also long before Marbury, the newly created federal circuit courts, with Supreme Court justices presiding, reviewed the constitutionality of acts of federal officials and scrutinized federal statutes on no less than twenty occasions. Justice James Wilson, appointed by President George Washington and one of the more scholarly of the first justices, prepared a series of now famous lectures in 1790 and 1791 in which he explained that the courts must decide constitutional questions as a check on the legislature. In 1794 the Supreme Court declared a law passed by Congress in 1792, the Pension Act, was unconstitutional.[85] In short, the Court has had this power from the outset, and contrary to Colson’s claim, it did not suddenly “assume” it in 1803.
Colson’s historical examples, suggesting that presidents and Congress need not be bound by Supreme Court rulings, are red herrings. His claim that Thomas Jefferson did not execute “the Alien Imposition Act” is incorrect, for there is no such law. If Colson is referring to the infamous Alien and Sedition Act of 1798, it had nothing to do with a court order, and the example is therefore very misleading. When Jefferson was vice president, President John Adams asked him for his legal opinion of the sedition act (which made seditious libel a crime); Jefferson replied that he believed it to be unconstitutional. Nonetheless, Federalist judges upheld the law, and John Adams prosecuted under it—to his everlasting historical shame. When Jefferson became president he pardoned those who had been convicted. Because the act expired on March 3, 1801, and Jefferson was not inaugurated until March 4, 1801, he could not execute it anyway, since the law no longer existed.
Colson’s claim that President Andrew Jackson “spurned a Court order in a banking case” is also misleading. Presumably, Colson is referring to Jackson’s veto in 1832 of a bill to recharter the Bank of the United States. In taking this action, Jackson relied on the constitutional argument that Chief Justice John Marshall had rejected in McCulloch v. Maryland two years earlier, when the court upheld the constitutionality of the bank. President Jackson’s veto, however, was not in defiance of a court order, for the Supreme Court had not said it was unconstitutional to not have a bank, so Jackson was under no obligation to recharter a national bank.[86]
Finally, in regard to his claim that Lincoln rejected the Dred Scott decision: Colson added in his commentary that “Lincoln even asked Congress to overrule the Court—which it did; passing a law that reversed Dred Scott.” That is a stunning summation, not to mention distortion, of history. What actually occurred was that the Supreme Court issued its abominable opinion in Dred Scott v. Sanford in 1857, asserting that slaves were neither citizens nor persons under the Constitution; that Congress could not prohibit slavery in the territories; and that the Declaration of Independence’s statement that “all men are created equal” referred only to white men. In 1858, during the famous Lincoln-Douglas debates when Lincoln was running for the Senate, Dred Scott was discussed. Lincoln, who later lost the race, argued that the Court had misread both the Constitution and the Declaration of Independence. He believed Dred Scott to be a political ruling, and rejected its politics, arguing, “We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.” Seeking reversal is not defiance of the law. Not until the outbreak of the Civil War did Lincoln actually defy the Supreme Court, when he suspended the writ of habeas corpus.[*] As for the Dred Scott decision, contrary to Colson’s inference, it would take more than a law passed by Congress to overturn the decision. In fact, it required two amendments to the Constitution: the Thirteenth and Fourteenth. Lincoln, as it happened, asked for neither, although some historians believe he encouraged Senator John B. Henderson to introduce the joint congressional resolution to abolish slavery that eventually became the Thirteenth Amendment.[87] The Fourteenth Amendment was not proposed until June 13, 1866, over a year after Lincoln had been assassinated.
Colson’s baseless arguments are unfortunately typical of those that authoritarian conservatives insist on making, using facts that are irrelevant or misleading, if not demonstrably wrong. The self-righteousness of authoritarians, particularly of Double Highs like Colson and Pat Robertson, has become so pronounced that at times it seems as if they believe themselves actually to be speaking ex cathedra. Their contention that the president of
