Is the Supreme Court Really Supreme?

What would happen if the Supreme Court ruled and the president ignored the ruling as unjust?  It has happened before. A century and a half ago, a Constitutional crisis took place similar one we’ve been threatened with over Roe v. Wade—one in which no moral consensus could be achieved between the three branches of government. The first constitutional crisis was over the hot-button issue of that day: slavery. The Supreme Court declared an act of Congress unconstitutional—and the president, Abraham Lincoln—to his everlasting credit—refused to recognize it. In 1857, the Supreme Court ruled on the case of a Missouri slave named Dred Scott. Scott’s master, John Sandford, had taken him into the free state of Illinois. Because of the Missouri Compromise and a law passed by Congress, residents in free states could demand their freedom. Scott did. Scott’s owner challenged the constitutionality of the Missouri Compromise arguing that slaves were private property protected by the Constitution and could not be taken away without due process. Congress, therefore, lacked the constitutional authority to ban slavery in Illinois or anywhere else. The Court agreed and not only sent Scott back into slavery, but claimed he had never been free. The Court also ruled that Congress lacked the authority to forbid or abolish slavery in federal territories—meaning the Missouri Compromise was illegal. Lincoln saw Dred Scott as an outrage, in part because the Court claimed authority to decide for the other branches of government once and for all what the Constitution required. In so doing, it placed the other branches in a position of inferiority and subservience, something the founders specifically rejected. As president, Lincoln ignored Dred Scott. His administration treated free blacks as citizens, issuing them passports and other documents. In open defiance of the court ruling, he signed legislation that restricted slavery in the western territories. Lincoln saw himself following in the footsteps of another president. Thomas Jefferson also believed that the president and Congress were in no way inferior to the Court. Jefferson told a friend the Constitution “has wisely made all the departments coequal and co-sovereign within themselves.” In so doing, the founders took into account fallen human nature. Both Jefferson and Lincoln believed courts were capable of violating the Constitution and undermining constitutional government. Lincoln proposed that the Constitution be changed—and it was with the passage of the 13^th amendment. Today, we have become so accustomed to the notion that the courts have supreme authority that we’re shocked at the idea that a president or the Congress might stand up to them. Fortunately, we’ve just witnessed the appointment of two new Supreme Court justices who respect the court’s limited rights under the Constitution. And we have a president who is appointing, throughout the court system, judges who will bring the courts back to a proper understanding of their role. And so we may avert the kind of constitutional crisis Lincoln faced over such divisive issues as abortion and so-called same-sex “marriage.” Lincoln’s birthday is a great time to remember that two of our greatest presidents would never have tolerated lawless judges who had no regard for the constitutional limits of his own power. Nor should we.

02/13/06