Friday, November 04, 2005

The Supreme Court and Defiant Presidents: FDR, Lincoln and Jackson

“The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.

“I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so.”

The author of these words was not Supreme Court Justice Antonin Scalia, still less Robert Bork, an originalist interpreter of the U.S. Constitution whose name has given rise to the expression “borked.” To be borked means to be publicly assaulted in congress by ideologically committed legislators who profoundly disagree with the words Franklin Delano Roosevelt delivered to the American public in a fireside chat on March 9, 1937.

But FDR was not the only president to quarrel with the courts. At least one pronouncement of the court, the infamous Dred Scott decision, was roundly assailed by Abraham Lincoln in his “Speech on the Dred Scott Decision,” delivered on June 26, 1857.

Judge Steven Douglas had appeared at the same venue two weeks before Lincoln and declared that “whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government—a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy and violence.” Any resistance to the Dred Scott decision, Douglas said, “shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution—the friends and the enemies of the supremacy of the laws."

Having determined that African Americans were not “persons” according to the law and so not entitled to constitutional protections, The Supreme Court, Lincoln said, had decided “that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories.”

Republicans offer no violent resistance to the decision of the court, Lincoln said, and then outlined several conditions that must be met for fair-minded people to give internal assent to a Supreme Court decision as a precedent: “If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.”

A close student of history, Lincoln recalled that President Andrew Jackson, had defied a Supreme Court decision on the matter of a national bank, and it was with great glee that he ran Douglas through with a sword taken from Jackson’s armory. Lincoln quoted Jackson: “Mere precedent is a dangerous source of authority and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled.” But Jackson went further than even Lincoln was prepared to go in assaulting the preeminent authority of the court.

"If the opinion of the Supreme Court covered the whole ground of this act,” said Lincoln quoting Jackson -- who was to the Democratic Party of the day what Lincoln later became to the Republican Party – “it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”

While Lincoln was not willing to go quite so far in his opposition to Supreme Court decision as Jackson or Roosevelt -- who proposed to pack a court that had resisted programs affirmed by the congress -- the arguments put forward by all three presidents show us, if nothing else, that resistance to Supreme Court decisions from the other co-equal branches of government is nothing new under the sun.

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