Poor Dick Gephardt is getting all sorts of flak from Scott Ott, Chris Lawrence, Daniel W. Drezner, Eugene Volokh, Glenn Reynolds, and probably others about his recent statement that he’d nullify any Supreme Court decisions he disliked by executive fiat if elected president.

While I grant that Gephardt’s statements are idiotic on their face, and that he is perhaps not the sharpest knife in the drawer, I say we should step back and think about this. I mean, why not? At least presidents are sort of elected by the people. As any schoolboy knows, Supreme Court justices serve for life and are appointed by Patrick Leahy. And there’s nothing in the Constitution anywhere giving the Supreme Court the right to interpret the Constitution and nullify acts of the representatives of the people it doesn’t like. Not a thing. John Marshall made that one up in 1803. You can look it up if you like.

Since then, the Supreme Court has made up all sorts of stuff. Implied powers for Congress. A really, really flexible interstate commerce function. Emergency war powers for presidents. A right to privacy. A right to abortion. The separate but equal doctrine. A wall of separation between church and state. And lots of stuff I’m not thinking of off the top of my head. Some of this stuff I like; others not so much. But it ain’t in the Constitution nowhere–I checked.

And don’t get me started on Congress. There’s very little that they do on a daily basis that’s in the Constitution and, ironically, most of the stuff the Framers gave them to do they foisted off onto an executive bureaucracy to free up time to do other stuff.

So, in the unlikely even Dick Gephardt gets elected president, why shouldn’t he just decline to enforce Supreme Court decisions he doesn’t like? If the Constitution is a Living Document, then why can’t President Gephardt breathe some life into it? Surely, there’s a penumbra somewhere that implies he could do it, as long as he felt he had a compelling reason to do it and it didn’t unduly burden white people?

Update (1817) Brett Marston agrees with me, sort of.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Heh, that’s the exact opposite of my reaction. But I’m a Madisonian, not a Jacksonian, at heart. 🙂

    BTW, for some weird reason your ping didn’t include the title of the post. It gave me a chance to fix the code to deal with that in the code, though, so thanks! 😉

  2. Hmm. I guess that last sentence was a bit redundant in places. Ah well.

  3. Paul says:

    My problem is that it basically reduces us to having 2 branches of goverment.

    If the exec branch can just undo the judical, why have a judical?

    I’ve always thought of our “three ring goverment” as a world’s largest game of “Rock, Paper, Scissors. And I sorta like it that way.

  4. Brett says:


    Your post is pretty satirical (I like it!) but I think that we probably agree in thinking that the Supreme Court has claimed too much exclusive interpretive authority. We disagree on the directions of the best view of constitutional interpretation, though. Unless I misread your post, which has been known to happen. . .