Do American have any recourse at all when the Supreme Court oversteps its constitutional authority? A leading constitutional scholar has a new paper that says yes.

In the U.S. political system, the Supreme Court now literally stands supreme. It defines the meaning of the Constitution. It strikes down state laws. And most Americans view its pronouncements as binding and non-appealable.

Essentially, in America today, a nine-person oligarchy rules over some 350 million people.

The founding generation never conceived such a thing. Consider the words of Thomas Jefferson.

“To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots…”

So what can Americans do when the Supreme Court redefines the Constitution? What remedies exist to stop judicial usurpation? How can we check the Court?

Distinguished University Chair and Professor of Law at the University of St. Thomas School of Law Michael Stokes Paulsen takes up this issue in an academic paper published in the NYU Journal of Law & Liberty.

The Court has elevated itself to a level that seems almost unreachable. It makes pronouncements and all of America bows down. But Paulson insists remedies exist, and he identifies six actions that can serve to check Supreme Court overreach.

  1. Full substantive ideological review at the appointment and confirmation stage of a judicial candidate’s judicial philosophy, including the posing of “litmus test” questions.
  2. Control over the Supreme Court’s appellate jurisdiction through aggressive use of the Exceptions Clause power (“jurisdiction stripping”).
  3. Manipulation of the size of the Supreme Court (both “Court packing” and Court “unpacking”).
  4. Impeachment of judges and justices for believed abuse of judicial power, violation of the judicial oath, and violation of the Constitution.
  5. Legislation prescribing correct substantive and methodological “rules of decision” governing the judiciary’s interpretation and application of federal law of all types and abrogating the judicial policy of (occasional) stare decisis with respect to precedent decisions departing from such rules.
  6. Presidential (and perhaps state and lower court) non-execution of judicial decisions inconsistent with the objective original meaning of the Constitution or other federal law.

Paulson’s consideration of state non-execution of judicial decisions affirms an important Tenth Amendment Center strategy – refusal to cooperate with officers of the Union.

Justice Scalia once described the Court’s tendency to overreach its authority as hubris.

“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the ‘least dangerous’ of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm’ and the States ‘even for the efficacy of its judgments.’ With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court – we move one step closer to being reminded of our impotence.” [Emphasis added]

Paulson points out that Scalia was paraphrasing Alexander Hamilton in Federalist #78  but “interpolating into Hamilton’s proposition of federal executive non-execution the words ‘and the States,’ implying, clearly enough, the prospect that state government officials properly may seek to resist lawless Supreme Court decisions by interposing state-law authority against them.”

James Madison certainly would have agreed. He recommended non-cooperation as one strategy to address “unwarrantable” federal acts (or even unpopular federal actions) in Federalist #46. He likely would have approved of the idea of state refusal to execute unconstitutional court decisions. After all, Madison asserted that the states ultimately serve as the final authority on issues of constitutionality in his Report of 1800.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

Paulson stops short of outright endorsing state non-cooperation, but he does leave the door wide open, going much further than most legal scholars would dare. He calls state non-execution of Court decisions “entirely plausible.”

May officials of state and local governments similarly (like the president) resist enforcement of specific Supreme Court judgements on the basis of their independent judgement that the Court’s decision is contrary to the Constitution?

This is an issue as old, at least, as the controversies over the Virginia and Kentucky resolutions resisting the Alien & Sedition Acts passed during the administration of President John Adams. It presents issues and difficulties going beyond those of presidential non-execution of judicial judgements on constitutional grounds…A discussion of the doctrine of state “interposition” and “nullification” would be an article all its own – and this one has gone on long enough. Suffice to say that the questions of legitimate state checks on national judicial power present yet further intriguing, difficult, and not entirely implausible avenues for inquiry as to means of constraining a perceived runaway federal judiciary.

Paulson dared to breach a taboo subject in his paper – state action to resist federal power. This was actually a pretty bold step considering the academic circles he travels. And Paulson hints that he might pursue the issue further down the road. Having an academic of Paulson’s stature really dig into the potential of state non-execution of Supreme Court decisions would be a refreshing breath of fresh air in a generally stagnant legal environment.

Meanwhile, Paulson provides a great service in this most recent paper. He makes it clear that the Supreme Court really isn’t supreme, and its edicts are not beyond reproach. Remedies exist to rein in the oligarchy’s power. Hopefully, this paper will set the stage to challenge the Court’s unwarranted power, and possibly serve as a springboard for deeper discussion on the power of the state.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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