Back in September I took conservatives to task in a forum in South Carolina for advancing the argument that courts don’t really get to decide what is constitutional and what is not:
Professor Robert George, one of the moderators, tried out his pet theory on all of the candidates: Because Article V of the 14th Amendment authorizes Congress to make laws to implement the Due Process and Equal Protection clauses, Congress could pass a law overriding Roe v. Wade. For this proposition he (and others) like to quote Abraham Lincoln to the effect that we should not allow the Supreme Court to be our masters. Now, Lincoln was fighting to save the Union (and hence violated habeas corpus restrictions) and was, well, Lincoln. Moreover, it’s not clear that he was exhorting the elected branches not to follow the Supreme Court rulings; after all, the amendment process does give the states (and thereby the people) the final say.
With the exception of [Rep. Ron]Paul and [Mitt]Romney, all the candidates went along with this academic exercise. But of course, for 200-plus years we’ve lived with the rule of law, allowed the court to interpret the Constitution and avoided constant constitutional crises. Richard Nixon didn’t ignore the Supreme Court ruling on the tapes. Dwight D. Eisenhower didn’t ignore Brown v. Board of Education. And certainly George and others would have a fit if President Obama ignored a ruling holding ObamaCare unconstitutional.
Unfortunately, this foolishness is hard to stamp out. The latest iteration is criticism of Minority Leader Sen. Mitch McConnell (R-Ky.) for the temerity to assert: “[W]e’ve got a final arbiter in this country, and that’s the Supreme Court.” Oh no, we don’t have to let the Supreme Court have the final say, you see, because, as one commentator put it: “The Court decides cases, and its decisions bind the parties and the lower courts, but the other branches of government are no less responsible for interpreting the Constitution in their own work.” Thunk.
That the other branches also have the obligation to restrain themselves and adhere to the Constitution does not in any way obviate the need for a final ref, an ump to call balls and strikes, as Chief Justice John G. Roberts famously explained. In his confirmation hearing, Roberts told us:
[I]t was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.
Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
It is that consensus that the government must recede when the courts decide that forced the District of Columbia (and by virtue of the decision, the federal government) to comply with the Supreme Court’s interpretation of the Second Amendment, that forced the feds to cease infringing on the First Amendment in the name of campaign finance reform, and that prevents state universities from running roughshod over the Equal Protection clause by utilizing quotas.
Now aside from the fact we’ve lived with Marbury v. Madison for over two centuries and we’d lurch from constitutional crisis to crisis without a final arbiter, why in the world would any conservative argue that maybe Obama wouldn’t have to follow the Supreme Court’s dictates? It’s mind-boggling, to be candid.
Let’s go back to McConnell’s actual words: Whether I agree with it or not, I’ll respect the decision. What’s the alternative? Maybe Obama should take it as a mere suggestion and then continue implementing the law. McConnell continued:
Let me be clear: I have no idea what the court will decide in this case. My own preference is well known. If the Court upholds the law, I’ll be disappointed. I’ll disagree with it. But I’ll respect its independence. And then I’ll continue to do everything I can to have this law repealed through the legislative channels that remain available.
“But here’s something I won’t do: I won’t mount a political campaign to delegitimize the Court in the way some in Congress have been urging this President to do, and in the way that he started to do earlier this week in the Rose Garden. I’ll respect the Supreme Court, even when I disagree with it.
“Why? Because at the end of the day, it’s the judiciary that ensures we’re a nation ruled by laws, not the whim of a President or a particular Congress. That’s why the Founders made sure the people who sit on the courts have lifetime appointments. It’s why the Constitution explicitly prohibits Congress from lowering their pay. It’s why justices enjoy the freedom to decide cases as they see fit, even if it means upsetting the very President who appointed them.
Whatever one’s qualms about the judiciary, we certainly don’t want presidents picking and choosing which decisions they’d like to follow. In this regard, McConnell was exactly right. Unless we want to revisit Marbury v. Madison or we have another civil war (and another Lincoln), conservatives should get off this kick. Conservatives are right to insist that courts stick to the text and meaning of the Constitution and statutes that come before them. They are right to label decisions that leap far from the text of those documents as judicial activism. But they do damage to the concept of constitutional democracy when they pooh-pooh the idea that other branches need not heed the courts’ decisions. And there is no better example of the chaos that would ensue than the potential for Obama to decide he’d rather not follow the Supreme Court on this one.