'Rogue' SCOTUS 'should only get the respect it deserves': legal expert

All eyes have been on Senate hearings for Ketanji Brown Jackson, the president’s nominee for the next justice of the Supreme Court. The Republicans can’t stop the ascent of the appeals court judge. The math is against them. But even so, we’re going to have the same problem.

A Supreme Court supermajority gone rogue.

With six Republicans, the highest court is almost certainly going to rewrite federal law, thus doing more harm than good in the future.

The Editorial Board has featured numerous remedies. Expanding the court. Stripping the court’s jurisdiction. Term limits, and so on. But there’s one solution rarely discussed because it seems so radical.

What if we ignore the court?

After all, the third branch of the federal government doesn’t have its own police. It can’t enforce the law. It can only interpret it. For its decisions to be felt in society, it must rely on the executive branch. If the executive or states ignore its rulings, the court will be impotent.

“The system is built such that the executive has the discretion to refuse to enforce court decisions,” Eric Segall wrote Monday in a group blog. He cited Editorial Board member Christopher Jon Sprigman:

[Alexander] Hamilton argued the court's utter dependence on the executive branch to enforce its judgments meant the court was no real threat to liberty. But for that argument to make sense it must also be true that, at least in cases where a court ruling provokes some disquiet, the president will make an independent assessment before enforcing it.

“Just so,” Segall commented.

Again, ignoring the court isn’t as radical as it sounds.

Indeed, it “has a solid foundation in American history,” Segall wrote. “Perhaps it is time for the people and our elected leaders to threaten to ignore the court when it intrudes into governmental policy where it simply does not belong. Although this suggestion sounds radical, it has a strong democratic pedigree and might be the only tool available to the American people to weaken our dysfunctional highest court.”

Segall is a professor of law at the Georgia State College of Law at Georgia State University. He wrote a book on court reforms called Supreme Myths. We talked after he watched Monday’s hearings.

You propose reforming the court by ignoring it. Why?

There is a rule everyone should agree with: Don't give government officials with largely unreviewable power a job for life. Terrible idea.

The justices come to see their preferences of law as Brutus predicted. [Brutus was an unnamed anti-Federalist influential during the framing of the US Constitution.] So many terrible cases from Dred Scott to civil rights cases to Lochner to Shelby County to Bush v Gore, etc., etc.

We know that serious Supreme Court reform will never pass the Congress, but something has to be done. My solution to ignore the court is, as I say in my piece, tentative but I see no other option.

Let's imagine an executive ignoring the court. What do you think the reaction would be from those invested in the court's power?

They would be angry and upset, and if they were too angry and upset, the president might change his mind. But it depends a lot on context.

For example, if the court were to hold that fetuses had a 14th Amendment right to live, I am pretty sure neither the president nor many blue states would abide by the decision. [This is a reference to a legal movement toward assigning “personhood” to “the unborn.”]

I think that would be as it should be.

I'm as desperate to reform the court as anyone else, but I have to ask: what's the difference between ignoring the court and nullification?

The court has no purse nor sword.

It should only get the respect it deserves.

The justices have a 150-year history of overreaching. That overreaching has led to an overemphasis during federal elections when we should be more concerned with poverty, racism, etc.

But you are right.

I think it is time to consider nullifying a court decision like Shelby County or Roe in which the court is imposing on Americans its own view of the good and just, not the one articulated in the Constitution. (That view is to leave most political issues to the political process.)

Playing more devil's advocate: States like Texas and South Carolina would love to ignore the court’s ruling on gay marriage. Are we talking about cost-benefit? The court does more harm than good?

We are definitely talking about cost-benefit.

I think the same-sex marriage cases were correct, but they led to Trump (as did polarizing issues like abortion and “gun rights”).

The court is great at stopping change, but not great at creating it.

Brown wasn't really enforced for over a decade or more. There’s also political pushback to major decisions that warp our politics.

We could avoid most of this if the court only struck down laws upon a strong showing of clear error. That was the original standard.

On balance, I think the court's decisions outside the Fourth through Eighth Amendments have hurt much more than they have helped. [Amendments four through eight are on criminal justice issues.]

Would it be more productive to ignore the court about a specific case? As you mentioned, facts matter. That would seem to be better than some kind of blanket rejection of the court's rulings.

I am not suggesting a blanket rejection. I am suggesting threatening the court with a blanket rejection when it overreaches. That might drum some humility and modesty into these life-tenured officials.

How vulnerable are these justices, especially the Republican justices, to a refusal to defer to the court’s authority? Would they determine for themselves that they're overreaching? Is this wishful thinking?

None of this depends on the court's acceptance.

We need to convince them to stand down. Maine doesn't want to pay for private religious schools. This term, the court is going to make them do it. Talk about federalism! This is education, which I thought was a local matter. I would support Maine ignoring the decision.

It seems to me your proposal dovetails with arguments over the court's legitimacy. From my point of view, a foreign enemy waged a cyber-war against the Democratic candidate, thus creating conditions for the victory of the Republican candidate, thus giving the Republican candidate the power to appoint three justices to the Supreme Court. An illegitimate court is one you want to ignore.

That might be right, but mine is not a partisan argument.

I argued for major reform in 2012 in my book, Supreme Myths, when Barack Obama was president and the court may have gone liberal.

The nub of my argument is the justices don't take prior law seriously enough to justify being called “judges.” If they are not judges, why are we following orders from an unelected veto council we can't fire?

The court is about to make it impossible for federal agencies to do their jobs. It's going to insist the Congress write extremely detailed laws that federal agencies would have to follow to the letter. Would that be a good time for an executive to ignore the court?

I agree.

The "non-delegation" doctrine is a complete fabrication, as is the "unitary executive," as is "anti-commandeering," as is state “sovereign immunity” in federal cases brought by the states' own citizens.

The court's history is not of law, but of making things up. At least, common law courts respected stare decisis [court precedents established by prior rulings] and could be overruled by legislatures. This court can’t be overruled and does not respect precedent.

I like your argument because it gets around the liberal imagination in which the court is a progressive hero. It's pretty much impossible to get liberals to think differently. That prevents them from pushing for court reforms. Your solution is elegant in its simplicity.

Thank you.

The Warren court was a blip in American history.

But I think it overreached badly. Richard Nixon won in 1968 partly by running against the court. Without the Warren court excesses, I doubt he’d have won. History would have been for the better without him.

One downside seems to be making room for vast levels of inequality. If Maine can ignore the court regarding public education, then Texas can ignore the court regarding abortion (though I guess it already has). Instead of a United States, it will be a cobbling together of states. Is this a trade-off for a court that's less destructive?

The Constitution anticipates the states can do what they want unless they violate clear text or maybe undisputed history behind the text.

The US Congress can preempt state laws under the commerce clause and the 14th Amendment. Truth is, absent a showing by a plaintiff of clear constitutional error, states should win constitutional law cases. That will sometimes be good, sometimes bad. It is called democracy.

That sounds like a “yes.” It's a trade-off worth making.

I think it is a trade off the law requires. But as a policy matter, yes.

How long would we have to ignore the court to reform it?

I think just a few threats could go a very long way.

So not ignoring so much as threatening to ignore it.

Yes! You get me.