“How many divisions does the Pope have?”
This was Josef Stalin’s famous rhetorical question to an advisor concerned about the Pope’s reactions to Stalin’s political moves. By his question, the Soviet dictator showed that he believed true power comes out of the barrel of a gun – as his communist compadre, Mao Tse Tung, said on a later occasion. Of course, the salient point – i.e., that the Pope’s “power” is spiritual and moral authority conferred on him by the Scriptures, the Church, and the people who willingly subject themselves to his “rule” – was entirely lost on a materialistic autocrat who recognized no such power. Nevertheless, Stalin’s point was valid – namely, that you need either guns or public support to make any ruling or diktat into effective law.
Stalin’s thought-provoking question has now re-arisen in the USA in an entirely different venue. In today’s political discourse its phrasing might be: “How many divisions (i.e., cops) does the Supreme Court have?” As most school-children know, the answer is zero. Although US Marshals do execute certain writs of the federal courts – e.g., ordering the capture of escaped federal prisoners – the plain fact is that no police arms are commissioned to enforce rulings of the Supreme Court.
When the Supreme Court issues a ruling, it is entirely up to the president and the Congress to honor both the letter and the spirit of that ruling. The Constitution stipulates and assumes this. If one or both of these independent branches of government declines to do so, the Court is powerless to enforce the ruling. The Supremes only make rulings. They can neither carry out a ruling nor compel others to carry it out.
Moreover, other than through its rulings the Court possesses no public “pulpit” from which justices can argue for the correctness of their rulings. Although some recently appointed justices have begun making public statements regarding certain rulings – thus injecting a political element into the Court’s composition and deliberations – such public argument is far from the norm. Some political factions applaud this novel modus operandi Suprema, but the public is clearly uncomfortable with it.
The people can compel the president or the Congress to enforce or ignore a ruling, via conventional or unconventional political means. Either way, the will of the people is paramount. Here is where Jefferson’s famous phrase – “…to secure these rights [i.e., Life, Liberty, and the pursuit of Happiness] governments are instituted among men, deriving their just powers from the consent of the governed…” – takes on stark meaning. It is the true limitation of the almost-unlimited “power” that some believe the Supreme Court now possesses. If the people – through their elected representatives – do not consent, a Supreme Court ruling is unenforceable. In Stalin’s lingo, the Court has no “divisions” with which to drive a result.
In practice, this fact is both a flaw and a boon for the nation. It is a “flaw” because resistance to Supreme Court rulings, by one political faction or another, can plunge the country into lawlessness and loss of good order. If significant parts of the country refuse to accept and obey a ruling, what can be done to restore order? File another suit to the High Court? (Ah, yes, that should work…) Obviously a problem cannot be corrected by the courts, if the courts caused the problem in the first place.
Conversely, this limitation of the Supreme Court’s power is a well-designed escape hatch for defusing rulings which much of the nation does not support. A good example would be the 1973 Roe vs. Wade ruling, which removed all state-imposed restrictions on abortion. This threw the door wide open for abortion on demand at any stage of fetal development. As problems produced by unlimited abortion have been realized by localities and states, the Court’s initial ruling has gradually been adjusted and scaled back. Even the Court itself seems to recognize that the 1973 ruling was excessive and ill-advised.
Resistance to a Supreme ruling has not arisen very often in our history, but a more radical strain of it now threatens to occur more frequently, since we have an activist president whose actions the Supreme Court has struck down in several rulings. Should the president decline to accept and follow the Court’s rulings on such a case, we might find the Chief Executive at odds with the Court’s authority – not a good result.
As an example, consider the president’s “recess appointments” of three members to the National Labor Relations Board (NLRB) in January 2012. In fact, the Senate was still sitting in pro forma session – meaning that it conducted some limited business, but was also adjourned for three days. The Senate said it was not adjourned – within the meaning of Constitutional Article II, Section 2, Clause 2 – but President Obama decided that it was. Consequently, he seated three nominees in the NLRB without Senate confirmation – as the Constitution allows for openings that arise when the Senate is adjourned. Contention over this point led to the Supreme Court’s recent decision that the president was not constitutionally empowered to make those appointments. “Three days is too short a time to bring a recess within the scope of the Clause,” said the Court in its ruling. Those appointments were thus disallowed.
The decision naturally was received with considerable satisfaction by Mr. Obama’s political opponents, and with gloom by his supporters. Constitutional experts say that the ruling overturns some 100 decisions and rulings made by the NLRB during its 2012-2013 sessions, when only two valid members were actually sitting. By 29 U.S.C. § 153(a) & (b), this is fewer than the required quorum of three members.
This is all clear enough, but the overarching questions are these:
- Will the NLRB actually rescind those 100 rulings?
- If not, what can the Congress do to make it happen?
- Will the president make future “non-recess recess-appointments,” despite the Court’s ruling?
- If he does, what then?
This case may not be of very great moment, since those “recess” appointees were replaced by the president in early 2013, and confirmed by the Senate. But the Supreme Court has also issued other controversial rulings in recent weeks. One was the so-called Hobby Lobby case, in which that “closely held” company – i.e., owned by a few individuals – was excused, via the Religious Freedom Restoration Act, from obeying Affordable Health Care Act rules that violated the owners’ religious beliefs. The RFRA had passed unanimously in 1993, but the Court’s application of it to liberals’ iconic AHCA caused a storm of protest. Some political factions claim (falsely) that women will lose access to birth control if all firms are not required to furnish it, without cost, via the health insurance policies they offer to employees. (In fact, Hobby Lobby’s owners object to only four birth control medications, which they consider “abortifacients.” Sixteen other birth control meds are furnished under their insurance policies.)
At this writing, the Democrat-controlled Senate is attempting to enact a bill reversing the Court’s Hobby Lobby decision, but the attempt cannot surmount a Republican filibuster. Even if it could, of course, it could never be passed by the Republican-controlled House of Representatives.
Thus, we shall see if Mr. Obama will issue an Executive Order that effectively defies the Court. His party’s base might cheer such a move, but it would truly be a Shot Heard Round the World, leading to the mother of all Constitutional crises and producing incalculable damage to the Republic. I earnestly pray that the president will turn away from this destructive course. No good can come of it.