It is taken for granted that the Congress, the President, and the American people will accept and abide by Supreme Court rulings, agreeable or otherwise.  While Court decisions never make everyone happy, they are seen as fully enforced rule of law. On the contrary, the Supreme Court has no mechanism for enforcing its decisions. There is no police force or oversight procedure formalized in the judicial branch to ensure that the executive carries out judicial decisions or that the legislature is compliant with the Court’s  rulings. Throughout the life of the United States, the Supreme Court has relied on acceptance and legitimacy of the institution as a means of enforcing its opinions. Still, it is not always successful at incentivizing government officers to respect its deliberative process. This article will outline multiple examples of executive compliance or recalcitrance with decisions of the high court.

Forcing Thomas Jefferson’s Hand

The first major instance of the Supreme Court ensuring compliance by another branch is in Marbury v. Madison.  When President John Adams lost the 1800 election, he decided to spend the rest of his “lame duck” term appointing Federalist judges to lifetime appointments on the federal bench.  One of these appointments was William Marbury for the position of justice of the peace. President Adams signed Marbury’s commission the day before the inauguration of his successor, and in the chaos of the transition, the commission was lost in a desk and never delivered by the Secretary of State.  When the new administration moved in, President Jefferson instructed James Madison, the new Secretary, to withhold the commission.

William Marbury petitioned the Supreme Court to issue a writ of mandamus, requiring Secretary Madison to deliver the commission.  Chief Justice Marshall was stuck between ruling against his party or ruling against the president, which would lead to noncompliance by the Jefferson Administration.  In his majority opinion, Chief Justice Marshall acknowledged that Marbury had a right to his commission, but denied that the Supreme Court was able to issue the writ of mandamus.  The Judiciary Act of 1789 gave the Supreme Court original jurisdiction over writs of mandamus, a direct contradiction to the Constitution.

The structure of the opinion tells President Jefferson that he was wrong to withhold the commission, but that he won the case and did not have to deliver it. This was a strategic decision on the part of the Court, as the power of the Supreme Court was expanded to review legislation, but the executive still won the case.  A victorious executive branch would ensure that the administration carried out the decision. Chief Justice Marshall understood that he needed the executive branch on his side for the Court to have institutional legitimacy, so he forced Jefferson’s hand towards compliance.

Now Let Him Enforce It

           Article 1 Section 8 Clause 3 of the U.S. Constitution reads, “The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with Indian tribes…”  When the state of Georgia imposed legislation regulating Native American land, Samuel Worcester sued, arguing that the state violated the federal government’s constitutional right to legislate on Indian land.  The case was appealed to the Supreme Court in Worcester v. Georgia, where a 5-1 decision agreed with Worcester that individual states cannot regulate Indian territory. Chief Justice Marshall wrote this opinion as well, but in a much more straightforward fashion than in Marbury.  

In response, President Jackson decided not to enforce the decision of the Court, famously saying, “John Marshall has made his decision, now let him enforce it.”  This was a blow to the Court’s legitimacy with the public, as President Jackson essentially condoned disobeying the rule of law as determined by the judicial system.  Courts rely on the executive branch to comply with their decisions for such decisions to have any effect, but President Jackson’s actions show a close connection to Jefferson’s theory of coordinate review, also known as departmentalism.  Under this theory, each branch of government has the ability to interpret their own constitutional duties as they see fit, rather than listen to the Supreme Court as the sole constitutional interpreter. President Jackson took it upon himself to determine the rule of law, which significantly weakened the integrity of the Court.

A Compliance Loophole

           October 29, 1929 commenced the Great Depression as the stock market crashed due to thousands of investors retreating from the market. In response to this economic downturn, President Roosevelt passed a series of legislation collectively referred to as the “New Deal.”  The New Deal created programs meant to stimulate the economy, give economic relief to workers, and save people’s jobs.  While President Roosevelt was passing program after program, the Supreme Court was invalidating them as unconstitutional stretches of federal power.  This was a major setback for President Roosevelt’s economic agenda.

           In response, President Roosevelt announced his plan to add new, young justices for every justice over the age of 70.  This was a clear attack on the Court for denying his economic agenda. While this plan would backfire and be seen as contrary to the principle of separation of powers, its goal was effective: the conservative members of the Court previously blocking New Deal programs suddenly started accepting them.  

Rather than instruct the executive branch to carry out the relief programs in spite of the Court’s initial rulings, President Roosevelt decided to force the Court to rule in his favor.  This is an interesting loophole to executive recalcitrance; when presented with the option to obey or disobey, President Roosevelt opted for a solution that would allow him to comply with the Court.  He knew that disobeying the Court would have further ramifications and crafted a method of compliance, even if it was on his own terms. President Roosevelt’s compliance loophole set the precedent that the executive cannot disobey the Court even when their agendas are incongruous.

Precedential Compliance

           Brown v. Board of Education of Topeka, Kansas is the most recent major case study for executive compliance with the Supreme Court.  Oliver Brown’s daughter, Linda Brown, was denied access to an all-white elementary school.  Mr. Brown subsequently filed suit against the Board of Education of Topeka, Kansas, claiming a violation of the 14th Amendment’s Equal Protection Clause.  The Supreme Court decided 9-0 that the “separate but equal” doctrine is inherently unequal.  This decision was wildly unpopular at the time, making this the perfect situation for the executive to disobey the Court without losing public support.

           Following the Court’s decision, Arkansas Governor Orval Faubus ordered the State Guard to block nine black students from entering a high school in Little Rock.  President Eisenhower responded by deploying  the National Guard to enforce the Court’s desegregation policy.  This is the most prominent example of executive compliance in modern history.  President Eisenhower put separation of powers ahead of the whims of the people to protect the legitimacy of a unanimous Court decision. Even though the Court has become increasingly politicized, compliance with the Court is expected largely due to the precedent set by President Eisenhower.

Conclusion

           In a commencement address to the University of Pennsylvania Law School, Justice Breyer commented on executive compliance with the Supreme Court. He concluded his speech describing how our nation has evolved from President Jackson’s dismissal of an unfavorable Court decision to President Eisenhower’s enforcement of a similarly unpopular opinion.  Justice Breyer noted, “…we fully understand that a system that protects our constitutional liberties must consist…of habits, customs, expectations, settled modes of behavior engaged in by judges, by lawyers, by the general public.” The difference between early and modern judicial acceptance is the political ramifications of breaking the accepted norm of trust in the judicial system.  Not every court decision will be popular with the public, but an adherence to the rule of law has proven to overcome demagoguery in the political system and ensures the legitimacy of the judicial branch.