“How Many Divisions Does The Supreme Court Have?”

So, ignoring the Supreme Court was once common practice.

The reign of Republicans during the Civil War and Reconstruction was a democratic breakthrough in two senses. First, legislative majorities overrode the Court, repeatedly ignoring its rulings and adjusting the number of Justices to prevent its interference. Second, those majorities abolished slavery, extended citizenship, and guaranteed equal protection to all Americans. The historian Eric Foner, in “The Second Founding” (2019), describes this as the country’s “first attempt, flawed but truly remarkable for its time, to build an egalitarian society on the ashes of slavery.”

Add to that, after secession, the Congress ignored Dred Scott and prohibited slavery in the territories:

Taney remained Chief Justice until 1864, when he died. During the Civil War, he watched impotently as the Lincoln Administration brushed off rulings on habeas corpus, Black citizenship, and, of course, slavery. “There was no sadder figure to be seen in Washington,” the journalist E. V. Smalley wrote. “He had outlived his epoch, and was shunned and hated by the men of the new time.”

As Mr. Dooley said, the Court follows the election returns. What he didn’t add was: “Or else.”

Oh, and about Marbury v Madison:

Because the Court lacked a permanent abode, Marshall read out the ruling from the steps outside Stelle’s Hotel, on Capitol Hill. As with most impassioned avowals made on hotel steps, Congress ignored it. The Marbury decision didn’t compel anyone to do anything, so Marshall’s assertion just hung in the air.

Judicial assertions meant less back then. In ways that are hard to conceive of now, early-nineteenth-century politicians simply defied the Court. States regularly declined to appear before it when ordered. “Virginia’s highest court refused to concede that the Supreme Court had the authority to review its decisions,” Friedman writes. “Georgia actually hanged a man in the face of a Supreme Court order to the contrary.”

The distinction is not an historical one but an analytical one. The analysis is vertical v. horizontal rulings. Vertical is the Supreme Court overruling lower federal courts. It is the Supreme Court, after all. The Court’s power over state courts is more limited, and the limits are complicated, so I won’t go into them now, even though it shows up later. As the early examples of Virginia and Georgia show, it took awhile to accept that authority. The real interest here is with horizontal rulings, when the Court presumes co-equal power over other branches of government (Congress, Administration, and, yes, state legislatures). All branches are equal, but some are more equal than others.  There’s no way around that.

But does it have to be this way? History, as I’ve briefly pointed out, says “No.” Now, that history’s a bit more complicated than a blog post or a Twitter thread, or a New Yorker article, can explain. The point here is, it exists; and it deserves study. Because the Supreme Court is only as supreme as we, the people, let it be.

Now this argument is full of subtleties. There were people who favored ignoring Brown v Board, and Eisenhower used federal military power to enforce it. But now Brown is more honored in the breach than in the keeping. Texas, like southern states, has turned to vouchers for private schools. Greg Abbott is campaigning on eliminating school property taxes, which would not coincidentally eliminate public schools (he’s not explaining where the money to fund public schools would come from). Why injure public schools, or eliminate them? The answer ain’t socialism; it’s racism. The effort begins and ends with very rich white men who don’t like Brown and Plyler v Doe (children of immigrants must have access to public schools despite their immigration status). They can’t change those decisions, so they’ll eliminate the schools. Given time and money, there’s a way around any Supreme Court decision..

Marbury is not an unalloyed evil. A great deal more good has arisen from Brown and Plyler, than evil. Brown may not be as enforced as it was in the’70’s (when my home school district finally desegregated. Fun fact: “liberal” Austin was still fighting the application of Brown in the’80’s. I moved there 7 years after desegregation in my arch-conservative hometown, and the fight went on for most of the’80’s. One never know, do one?), but its legacy is a change in circumstances that makes the world I lived in before 1970 absolutely unimaginable to my daughter. I count that as a good thing.

Does that outweigh the Roberts court gutting the VRA? No. But you can’t ever slice the baloney so thin it only has one side.

The horizontal assertion of power does raise many questions, including whether the courts are truly co-equal powers to the legislative and administrative branches (spoiler; they aren’t). To say they are, again makes them more equal than others. But to say they aren’t, lets a corrupt President like Trump run unopposed through the fields of the country, and its laws.  In 20 months, the courts are the only branch that has proven an obstacle to Trump’s desires. Arguably, what Trump is doing is what we, the people, voted for. Well, some of it is. Especially the part that affects “them,” and not “us.” We shouldn’t always get what we want, either.

Horizontal power is not limited to the Marbury remit. It necessarily includes statutory interpretation, a basic function of courts of law, one as basic as the common law America and the states (save Louisiana) adopted before replacing it with statutory law. (Civil law and even criminal law arose from the courts of England once upon a time. Marbury really isn’t sui generis.) Statutory interpretation is a horizontal power, but a necessary one. The courts can’t enforce a statute without interpreting it, and that power is also the power to invalidate, if not directly, then indirectly. Congress may have intended one outcome from a bill, but the courts may find a different one altogether. Hard to know precisely what Congress means to do, anyway. And the court has to apply the law to the facts before it. Which means the court has to decide what the law is, in order to apply it. So this business of horizontal analysis v. vertical analysis isn’t simple and clear-cut, with one way right, one way wrong.

The New Yorker article lays out the reactionary history of the Court, especially the “Lochner Era,” when the Court issued a great number of horizontal rulings, mostly against state laws (Lochner held that a New York law limiting working hours violated the 14th Amendment). And that history is, indeed, problematic. But then, to be honest, the law as the country adopted it from England (common law), is highly reactionary. Chief Justice Rehnquist was closer to the nub when he disdained civil rights law in preference for property rights law. That really is the core of English common law.

Interestingly, the history of the Court’s application of this horizontal authority is largely used against state laws, less often against federal laws. But then it's called "vertical authority," in the analysis, presumably because states are inferior to the federal government.  Which is an interesting theory in it's own right, and not one the states have ever fully agreed with.  For one thing, there are areas of state law upon which federal courts cannot tread.  If there is no conflict with state law and federal law, or the U.S. Constitution, the federal courts cannot override state law based on some presumed supremacy.  But that's precisely what "vertical authority" is:  the rule of supremacy.  Which is fine in the federal system; but a problem when it's the basis of federalism.

I say this because the article argues that the Warren court engaged primarily vertical authority over state laws, and seldom exercised  horizontal authority over federal law. That authority was most evident, as I say, when Eisenhower sent in military power to open Arkansas schools to black students.  

The Warren Court had little need for horizontal review, Bowie and Renan believe, but it clung to that power nonetheless. A decision mandating school desegregation in Little Rock, Arkansas—signed by every Justice, for boldface emphasis—insisted that the Court’s supremacy over the other branches in interpreting the Constitution had been accepted since Marbury as “permanent and indispensable.” As history, this was ludicrous. The Warren Court, while making substantively democratic rulings, cemented a procedurally undemocratic arrangement.

That's a sweeping assertion of authority by the Supremes (even though it was a good result, as I said), but it's a more sweeping analysis of federal v state sovereignty.  That analysis I'm a bit less comfortable with.  Not the result, mind; the explanation 70 years later, by two law professors (Bowie and Renan.  Bowie, ironically, is the sone of Lani Guineri.  IYKYK.).

So praise to the Warren Court, dubious glances to the contemporary law professors, but still, a problem:

In gratifying the left, the Warren Court debilitated the long tradition of opposing judicial supremacy. Just how debilitated it was became clear in the deadlocked Presidential contest between George W. Bush and Al Gore. In a similarly close nineteenth-century election, between Rutherford B. Hayes and Samuel J. Tilden, Congress had taken charge and no one had “ever dreamed of trying to resolve it in litigation,” Larry D. Kramer notes. Yet, in 2000, the dispute went through the judiciary as a matter of course. After the Supreme Court decided for Bush, who’d lost the popular vote, Democrats acquiesced. “While I strongly disagree with the Court’s decision, I accept it,” Gore said, adding that the process had shown the “strength of American democracy.”

I would say that long tradition began to die when Chief Justice William Howard Taft championed the Judicial Reform Act into law. But that's another argument for another time.  The Warren Court clearly cemented the idea that the Supreme Court was, indeed, supreme.  And now it's time to take a sledge hammer to that pedestal.

I’d say the Sinister Six are pondering that very possibility as the election results become more agreed on: Congress can control the court (as Professor Vladeck points out, the Congress did so regularly, until the Judiciary Act of 1927). States don’t enjoy such power. So the Court, one could conclude, regularly punches down. After all, they know where the power is. And that while they claim to be co-equal, they can’t determine where they sit (the current Supreme Court building hasn’t yet been in use 100 years, and Congress could close it tomorrow). They have no power to enforce their rulings (even federal marshals are under the Administration), and the size of the court, even its jurisdiction (save for that set by Art. III, which is minimal), is a set by Congress. Which can remove Justices for pretty much any reason it wants. The Supreme Court has no jurisdiction over impeachment proceedings. They are co-equal, or even first among equals, because we accept that they say they are.

So what happens if we stop doing that?