Brett and Steven both note the sardonic quality of my earlier post but are left wondering exactly where I stand.

While I was engaging in a bit of whimsy on my statement that the Supreme Court’s judicial review power is extraconstitutional, I do hold that position. It has become an article of faith that they get to say what the Constitution means, and time has given it a certain legitimacy. It would therefore upset our political framework were presidents and congresses to simply ignore the Court’s rulings. Gephardt’s statement, in that context, was plainly idiotic. Presidents can’t call out the National Guard every time they get a Supreme Court ruling they dislike; that would be the road to tyranny.

That said, there has been a longstanding tradition of the branches pushing the envelope to extend their policy preferences. The Supreme Court is not sacrosanct. Presidents have just as much of a duty to protect the Constitution as the Court and it is perfectly reasonable for a president who strongly believes a ruling is in error to use every legitimate means at his disposal to minimize its impact. If, for example, President Bush wanted to expend his political capital fighting for a stricter construction of the 14th Amendment, he could get Congress to pass a law denying federal funds (Pell grants, ROTC scholarships, VA eligibility, etc.) to schools that discriminate on the basis of race. Indeed, I’m not sure he couldn’t issue an executive order under the Civil Rights Act of 1964 to that effect.

Why isn’t this the same as what Gephardt said? Well, because such a move would be easily checked within our system. First, Bush would have to calculate the political fallout of the move. If the public were strongly arrayed on the other side of the issue, he’d have to risk the political consequences. Second, Congress could bring pressure to bear if they thought the move illegitimate. They could hold hearings and otherwise exercise their oversight authority. They could include language countermanding the order in an appropriations bill. Finally, the Supreme Court itself could overturn the order if they found it to be unconstitutional. That would set up an interesting test of wills. The president would then have to decide whether to abide by that ruling or risk the political fallout from openly thumbing his nose at the Court. And, again, the public and Congress could use their powers to enforce their will.

As an aside, with respect to the affirmative action cases, I’m not sure how a President Gephardt could have acted had the Court ruled in the opposite direction. It’s easy to get around a ruling saying that affirmative action is constitutionally permissible, since no one has suggested that it’s constitutionally mandatory. On the other hand, overturning a ruling that, say, followed Hopwood and said that all consideration of race by government, for any reason, is flatly unconstitutional would be much more difficult.

Occasionally, the Court would lose out in these matters–which is not a bad thing. There’s no more reason why a Court majority should always get their way than a president should get his or Congress theirs. The Constitution is an invitation to struggle, and the Court is every bit as much a political player as the other actors. While I think this set of rules is different than the ones envisioned by the Framers, especially with respect to the power of the Least Dangerous Branch, it is nonetheless how the game has been played for the last 150 or so years.

Update (1352): Brett Marston has more. We agree except for a small quibble as to Gephardt’s idiocy:

I repeat my point: the fact that opponents of Gephardt can’t figure out how he could issue an executive order to counter Grutter if it had gone the other way means absolutely nothing.

Agreed. But, to date, Gephardt himself apparently can’t figure it out. That does cast some light on his statement.

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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 and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.