Conservatives and liberals alike, then, have contributed to a popular narrative of a “norm of compliance” across U.S. history, a narrative that functions to make disobedience seem unthinkable. But this narrative is false. It obscures the reality of ordinary noncompliance that has, past and present, defined the scope of judicial authority.
Opposition to the Supreme Court has occurred in myriad forms. Feigning horror at the idea is a con, and a pernicious one at that. To pretend like there aren’t multiple styles of noncompliance gives the impression that resistance is beyond the pale. This, in turn, prevents us from seeing how noncompliance has already escalated, and from grasping lucidly the possibility and the stakes of taking it further.
Presidents have not openly defied a federal court order since the turn of the twentieth century, but the record of open presidential defiance goes back to the beginning of U.S. history. And it is morally complicated.
In Marbury v. Madison—the 1803 decision widely, if erroneously, understood to have established the power of judicial review for federal courts—Thomas Jefferson credibly threatened to defy any judicial order instructing his secretary of state to install opposition party member William Marbury as justice of the peace in Washington, D.C. (Jefferson also reportedly promised retaliation, including but not limited to judicial impeachment.) Almost thirty years later, Andrew Jackson purportedly refused to assist with enforcing the Supreme Court’s order to release a state prisoner in Worcester v. Georgia, the case associated with the apocryphal quotation, “John Marshall has made his decision, now let him enforce it.” And three decades after that, in Ex parte Merryman, Abraham Lincoln famously defied a judicial order issued by Chief Justice Roger Taney to release a suspected secessionist from federal custody.
But this form of confrontation subsided. In the twentieth century, Franklin Delano Roosevelt twice threatened defiance: first in response to a series of court challenges to his decision to take the country off of the gold standard, then when his use of military tribunals for alleged Nazi saboteurs was questioned. The Supreme Court gave way in both instances. No president has challenged the court in this manner since.
Whether or not these examples are “chilling,” in conservative professor Jonathan Turley’s words, they show that open defiance of federal court orders by presidents has become a rarity. Acknowledging that flagrant challenge to judicial authority is the exception, though, is not the same as conceding strict presidential (or, for that matter, congressional) compliance as the rule. Focusing on the most flagrant episodes of defiance ignores everyday, ordinary noncompliance.