Another historical comparison to contemplate

Problem 2 poses a question involving outright presidential defiance of a binding legal order from the Chief Justice of the United States. In thinking about that problem, it might also be helpful to consider the following two examples from U.S. history, and what they say about the power of courts (and the constitutional obligations of others).

Example 1: The Supreme Court decided Brown v. Board of Education in May 1954, holding that in the field of public education, "separate is inherently unequal." Racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. There were five school districts who were actual parties to Brown, and most everyone agreed that those five school districts were bound by whatever remedial order the court issued. Thousands of other school districts (outside the deep South) desegregated their schools in an orderly fashion. Tens of thousands of school districts in the deep South, however, stated that they disagreed with the Court's reading of the Constitution and refused to follow it. They stated that they would follow a judicial order directed at them specifically as parties (though this was not always honored), but they asserted their independent right to interpret the Constitution. As a result, roughly 1 percent of African-American children were attending desegregated schools in the deep South as of 1965, eleven years after Brown had been decided. History has largely judged the South's resistance to Brown as shameful and lawless.

Example 2: In 1857, the Supreme Court handed down its infamous decision in Scott v. Sanford (also known as Dred Scott). In that decision, among other things, the Court held that Congress had no authority to regulate slavery in the territories, that the Missouri Compromise was unconstitutional, that no African-American could be a citizen of the United States, and thus that Mr. Dred Scott remained a slave owned by Sanford (even though he had been taken for a time to "free" territory). Abraham Lincoln stated that, although he (and everyone else) clearly had an obligation to obey the specific judgment in Dred Scott, and thus not to challenge the idea that Mr. Scott was still owned by Mr. Sanford, he (and we) had no obligation to obey the Court's construction of constitutional meaning, or what Lincoln called Dred Scott's "political rule." For if we did--if we simply let the Supreme Court decide, once and for all time, what the Constitution means--then we have given over our government "of the people, by the people, for the people" to the courts. History has judged Lincoln's position to be courageous, and indeed he remains widely viewed as the nation's single greatest political leader.

Is the only difference the underlying moral rightness (or wrongness) of the two causes? If so, does that mean that school districts in the deep South were just as justified as Lincoln in asserting an independent authority to interpret the Constitution for themselves?

A little more on political questions

I just wanted to add a couple of thoughts to yesterday's class discussion. First, the criteria from Baker v. Carr are certainly relevant to determining whether a case presents a non-justiciable political question, but they are dramatically overinclusive, making them relatively useless as a predictive guide as to what a court will do. The first two criteria--whether there is a textual commitment of the matter to another branch, and whether the issue is not amenable to judicially manageable standards--seem to be the most important.

Second, the courts seem to use the political questions doctrine in practice as a sort of safety valve, a means to staying out of a controversy (or type of controversy) where the judiciary's involvement is apt to cause it some long-term institutional damage. This might be because courts would have real difficulty deciding cases according to rules that look at all judicial in character rather than legislative; that is, the judiciary's involvement might make the courts look especially political (or results-oriented), thus damaging its reputation. Or it might be (as Brian mentioned in class yesterday with respect to Ashwander) because the Court realizes its decision might not be obeyed, and thus would expose it as powerless.

Third, and relatedly, it makes some sense to think of the political questions doctrine--though it is a constitutional rule, derived from the "case" or "controversy" requirement of Article III--as working in practice as a sort of constitutional avoidance principle, much like those listed in Ashwander. It is a dramatic avoidance principle, as it entails the judiciary's complete withdrawal from the field, leaving resolution of the constitutional question entirely to the other branches. But it operates as means of avoidance all the same, and is invoked by the courts for largely the same reasons.