POTUS v SCOTUS
President Of The U.S. versus Supreme Court Of The U.S.
We read, hear and see in the news stories about President Trump not appreciating decisions of judges. Depending on the source, these stories present an unreasonable position by POTUS or by the judges. The impression of many seems to be that this is something new – that happens when people generally no longer have an interest in history.
A lack of historical knowledge is dangerous. As George Santayana stated in 1905: “Those who cannot remember the past are condemned to repeat it.” He may have had a more ancient author in mind: “What has been will be again, what has been done will be done again; there is nothing new under the sun.” Ecclesiastes, 1:9. In December of 2016, George Washington University announced that those seeking a degree in history need not take any courses relating to U.S. history.
The U.S. Constitution sets out the powers of the President in Article II with little specificity. They knew who the first President would be – George Washington – in whom they had complete trust and knew would establish reasonable precedents for the office. President Washington did not let them down.
It took very little time after President Washington before other Presidents began to exercise extraordinary power causing them to come into conflict with the Supreme Court. The powers of the Supreme Court are found in Article III of the U.S. Constitution and have only a little more specificity that what is found in Article II. What we have come to know as the virtual absolute power of SCOTUS to make and break law with every official, agency and person immediately marching in lock-step to it’s every whim – that power is not found in the literal language of Article III.
Thomas Jefferson was the first to have a conflict with SCOTUS. John Marshall was the Chief Justice at the time. In 1800 Jefferson defeated the incumbent President John Adams – they were bitter life-long adversaries. Adams was for a strong central government and Jefferson was against centralization – he did quite an about face once taking office. He found that the President had a great deal of power granted him “in the penumbra” of the Constitution.
Before leaving office Adams had made a number of appointments of people who thought as he did across the country to preserve his influence on policy. One of those appointments was a commission for William Marbury for Justice of the Peace of the District of Columbia but it had not yet been delivered when Jefferson took office. Jefferson withheld the commission.
Marbury filed a lawsuit under the Federal Judiciary Act of 1789 to force Jefferson’s Secretary of State, James Madison, to give him the commission. In the decision of Marbury v. Madison, 1803, Chief Justice John Marshall stated that Marbury was entitled to his commission and that Secretary of State Madison had no discretion to withhold it. However Marshall, being the brilliant jurist he was, dismissed the suit on procedural grounds stating that the U.S. Consitution did not give Congress the authority to enact a law that allowed Marbury’s type of suit be be filed directly in the U.S. Supreme Court. Thus established judicial review and the authority of the courts to declare laws and actions invalid.
Sadly, we now – and for some time – live in an era of letter jurists who have decided that their own moral, political and social belief take precedent over the U.S. Constitution. We’ve all heard the expression “activist judges” and we too commonly see them everywhere from our local courthouses to the U.S. Supreme Court. The lengths such judges go to rationalize their conclusions challenges the imaginations of Aesop, Jacob and Wilhelm Grimm, Hans Christian Andersen and – of late – Theodor Seuss Geisel. This is not an indictment of all judges. The vast majority of judges are fair, honest and honorable people who follow the law exactly as it is.
Perhaps the greatest open conflict and complete defiance of SCOTUS by a President was that of Andrew Jackson in 1831-1832. This SCOTUS case and decision focused on the state of Georgia. The impasse between President Jackson and SCOTUS is the sole subject matter of PART II and will be address there.
The next noteworthy conflict between POTUS and SCOTUS was that of Martin Van Buren regarding the famous Amistad case – United States v Amistad, 1841. Van Buren had been pressing the Supreme Court to agree with his strong pro-slavery position. A movie was made concerning these events staring Anthony Hopkins as John Quincy Adams – the movie was titled simple Amistad.
Spaniards had taken Africans from their home in Sierra Leone to be sold into slavery in Cuba. These captives revolted, killed the ship’s captain was forcing the crew to return them to Africa. The ship was intercepted in U. S. waters off the shore of Connecticut and charged with mutiny and murder.
Van Buren sided with Spain – holding that the captives belonged to Spain. Former President John Quincy Adams (then a member of Congress and an abolitionist) argued the cast before the Supreme Court against Van Buren’s administration. Adams’ position was that the Africans were free men and should be released. The Supreme Court sided with Adams and they were returned to Sierra Leone.
Teddy Roosevelt was next. President Teddy Roosevelt was a progressive as to several issues including working conditions. New York had passed a law limiting the amount of time that bakers could be made to work to 10 hours a day and 60 hours a week. SCOTUS struck the law saying that it conflicted with due process which they decided included an individual “right to contract.” Lochner v New York, 1905. He began trying to reduce the influence of the courts but left office before any real progress could be made.
Franklin Roosevelt a distant cousin of Teddy Roosevelt had a conflict with SCOTUS that came close to changing the very structure of the Court. Franklin Roosevelt had proposed and Congress had passed various laws creating programs aimed at helping the U.S. recover from the Great Depression. SCOTUS declared some of the legislation unconstitutional.
Roosevelt began promoting legislation which would increase the Court to 15 members. As it became apparent to SCOTUS that there was going to be a large and “packed” Court, SCOTUS did an about face regarding his New Deal legislation.
In more recent times we see a conflict between George H. W. Bush and SCOTUS. President H.W. Bush was a dedicated patriot; a decorated WWII Navy pilot who had been shot down in the Pacific and survived. When SCOTUS, in Texas v Johnson, 1989, declared that burning the American flag was constitutionally protected free speech he was very upset. However, when Congress passed a bill to make flag-burning illegal and punishable by time in prison, he refused to sign the bill.
Bush’s motivation in refusing to sign that bill is uncertain. It has been stated that he respected SCOTUS’ power to interpret the Constitution. It has also been said that he wanted to be certain that SCOTUS could not again over-ride the issue of flag-burning – that he urged Congress to pass a constitutional amendment to make flag-burning a crime.
Who knows what the future will bring regarding the “balance” of power between the Judicial, Legislative and Executive branches of our government? There seems to be no clear consensus regarding the trending dominance of the Executive and Judicial branches as the Legislative appears to continuously weaken and transfer power to the Executive with the Judicial having the final word.
Are we headed to a system where a few appointed-for-life activist individuals are going to dictate the future of the United States according to their own personal views and prejudices of right and wrong? At times, it seems that we are. Do we need another Andrew Jackson? Perhaps.