Presidential/Public Attacks on the SCOTUS

[lawrocket 3]

We remember what the president said last week about the "unelected" court and the "strong majority" that passed the ACA. (Of course, I'm sure nobody remembers the heavy amount of grease, kickbacks, closed door meetings, payoffs, bribes, etc that went into the passage of the bill).

But I digress. The President's speech wasn't entirely inaccurate - he did reflect that the right wing has long had problems with activist judges in the past (though the inaccuracy of calling the SCOTUS "activists" for this is also highly disputable). But, nevertheless, there is a long and storied history of conflict between the executive and legislative branches and the judicial branch.


Samuel Chase was appointed to the SCOTUS by George Washington in early 1796. Things were okay for a while, until Marbury v. Madison, where the executive and the legislative were appalled by the seizure of power by the court. Thomas Jefferson was among those who didn’t like it. TJ then sought to remove federalists from the bench. Knowing that Article III of the Constitution is not self-enacting, TJ and Congress repealed the Judiciary act of 1801, which got rid of lower courts and effectively fired the SCOTUS judges. Chase spoke out against it and was impeached by the House and tried in the senate, where they argued that Chase’s political motivations caused him to treat defendants unfairly. He was acquitted. It’s the only time a SCOTUS justice has ever been impeached.

But there are other times when the executive/judicial branch battle comes to a head. Maybe our President will look to unprecedented precedent, when the unprecedented President Andrew Jackson was on the receiving of a SCOTUS disagreement when Worcester v. Georgia was decided in 1832. Old Hickory (so named because he had a hickory cane that he liked to use to beat the shit out of people) is alleged to have said something to the effect of “Marshall has made his decision, let him enforce it.”

These things happened within fifty years of the Constitution being passed. There was more fun later on. Let’s take a look at Lincoln. Honest Abe was not a fella to let the Constitution stand in the way of doing what he thought was necessary to preserve the union. Even without Congressional approval he expanded the military. He proclaimed martial law, suspended the writ of habeas corpus, censored newspapers, arrested seditious citizens. In 1861, Chief Justice Taney (sitting as a district court judge) opined in Ex Parte Merryman that the President didn’t have the power to suspend the writ of habeas corpus – only Congress could do that. Of course, Taney also raged against Lincoln’s usurping of power. Lincoln (that noted civil libertarian) ignored the ruling, told the military to ignore it, and EXPANDED the zone where habeas corpus was suspended (Honest Abe’s “Up Yours” to the courts)! A few months later – after Congress failed to pass legislation to ratify Lincoln’s acts and other courts found against him – ordered the release of the political prisoners. He later suspended habeas corpus nationwide, and subsequently got Congress to pass a law ratifying it.

I could go on. FDR’s court stacking plans to counter the SCOTUS consistently overruling his pet legislation. Truman’s embitterment at his nationalizing the steel industry being overruled by the SCOTUS. Nixon’s “When the president does it that means it’s not illegal.” How about the Warren Court? When Ike appointed Warren, every Justice was appointed by FDR or Truman and were all New Deal dudes. But some of them didn’t like the judicial restraint in individual rights. Absolutely, the Warren court was unpopular – like when the Court issued decisions releasing communists during the whole Red Scare.

So I wonder what our President will do if the SCOTUS comes down against him. There is precedent for outright ignoring the SCOTUS. Can you imagine our President invoking Abe Lincoln and stating that, as he did in his fight for a more secure people, he is going to ignore the SCOTUS and do what the strong majority of greased up congresspeople want done?

I’m going to be watching this.

My wife is hotter than your wife.