“In the name of the greatest people that have ever trod this earth,” Alabama Governor George Wallace proclaimed in his 1963 inaugural address at the state capitol in Montgomery, the first seat of the Confederacy, “I draw the line in the dust and toss the gauntlet before the feet of tyranny … and I say … segregation now … segregation tomorrow … segregation forever.” True to his word, Wallace famously stood in the door of the University of Alabama six months later to block a federal court order that the university admit two Black students.
That effort failed. Wallace stood in the doorway for the sake of the cameras, but under the watchful eye of National Guard troops federalized by President John Kennedy and with Deputy U.S. Attorney General Nicholas Katzenbach standing feet away, Wallace stepped aside, and the students, including Vivian Malone (later the sister-in-law of Attorney General Eric Holder), were enrolled that day. Despite his retreat, Wallace became wildly popular in the state, served four terms as governor (five, if you count the term his wife, Lurleen, was elected to), and made two serious runs for President.
As the Brennan Center’s Kareem Crayton wryly observed, Alabama “has a long tradition of defying court orders.” The state is now up to the old Wallace trick—and then some. By balking at producing a redistricting plan that can pass judicial muster, its legislature has refused to comply with a district court order and a Supreme Court Voting Rights Act decision in what may be a foretaste of future crises on the left and right. States on both sides of the red-blue divide are growing querulous about Supreme Court rulings. Even though it is now dominated by a radical-right majority, resistance to its precedent-shattering decisions seems at least as likely to come from the right as from the left. In fact, state defiance, in general, has a history that stretches back almost to the Founding.
The Court may even face something not seen since the Civil War—defiance of a President of the United States.
Let’s begin with the states; they are raring to go. Texas, for example, seems to regard Supreme Court decisions as mild suggestions. In 2021, its SB 8 abortion bill didn’t merely test the boundaries of Roe v. Wade but successfully negated it, even though the landmark 1973 ruling was affirmed by the Court as recently as 2016. The Court meekly allowed that bill to take effect. Months later, after the Court’s majority issued its opinion in Dobbs v. Jackson Women’s Health Organization and scrapped Roe, Texas Attorney General Ken Paxton invited state officials to begin prosecuting LGBTQ persons for “sodomy” and refusing same-sex marriage licenses (both forbidden by the Court). I am surely not the only one wondering what will happen if a federal court orders Governor Greg Abbott to remove the deadly pontoons he uses to block the Rio Grande.
Since 2016, Republicans’ shameless political meddling with the Court—the blockade of the Merrick Garland nomination, the issuance of Donald Trump’s list of judges, and his promise that his judges would “automatically” overturn—were radical events. Those and what followed made the Court a different institution than it had been since at least the 1930s when the “switch in time” ended its vendetta against the New Deal. Simply put, it is not acting like a court; it will not be treated indefinitely by friend or foe as if it were one.
The Alabama imbroglio partly arises from right-wing outrage that the Court acted like a court. Last June, it shocked its conservative creators by ruling 5-4, in a case called Allen v. Milligan, that Alabama’s legislature had violated Section 2 of the Voting Rights Act of 1965. The violation, a lower federal court (two of its three judges appointed by Trump) found, was drawing a district map that denied Alabama’s Black voters—a quarter of the population—any chance of electing or influencing more than one member of the House. (Section 2 is violated if racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”) In February, Alabama—and legal conservatives generally—were confident that the Supreme Court would erase the lower-court opinion when the Court, without explanation, had issued a “stay” of the lower court ruling.
But, as the British tabloids say, SHOCK HORROR! After hearing the case, the Court held, 5-4, that the Alabama plan did violate Section 2. (The lineup was Roberts, joined by Justices Sotomayor, Kagan, Kavanaugh (in part), and Jackson, with Justices Thomas, Alito, Gorsuch, and Barrett in outraged dissent.) Roberts’s vote cannot be explained by his view of § 2, to which he has been resolutely hostile since his first days as a junior lawyer in the Reagan Justice Department. It seems inescapable that it arose from his alarm at the lawlessness of Alabama’s request, in effect, to scrap the Act altogether. The shock of that opinion continues to reverberate as the lower courts must now apply the Court’s ruling to redistricting challenges in other southern states, and the outcome may even affect control of the House in 2024.
The three-judge panel ordered a new map that would include another majority-Black district or something “close to it.” The legislature produced its new map last month: But its additional minority district was only 42 percent Black—while it reduced the Black voting age percentage of the existing majority-Black district from 55 to 51. “In my heart of hearts,” the Republican sponsor of the new map told the state House, he realio trulio believes the map complies with the Court’s decision.
Well, I am no judge of hearts, but it realio trulio doesn’t.
Some observers suggest that statehouse Republicans feared primary challenges if they voted for a map with two majority-Black districts and offered this one knowing the three-judge court would reject it and draw its own. But there’s another possibility. The Alabama Political Reporter, an established website covering state politics, suggests that the new map is part of a scheme to evade the Court’s decision altogether.
Here’s the plan, the Reporter said: The three-judge panel will almost certainly reject the map—and the state will then appeal to the Supreme Court again. The Political Reporter wrote that “sources said that Republican lawmakers believe their D.C. connections have ‘intelligence’ that Associate Supreme Court Justice Brett Kavanaugh, who voted with the majority in Milligan, is open to rehearing the case on its merits.”
There’s a hideous plausibility to this idea. Read carefully, all the opinion did, in this case, was uphold a preliminary injunction by the three-judge court. This meant the challenge to Alabama’s map was “likely to succeed.” But the Court has gone both ways on this question—the stay issued in February was supposed to signal “likelihood of success” for the state. The likelihood calculus had shifted; could it shift again?
In a concurrence, Kavanaugh echoed a concern by Justice Clarence Thomas in dissent—that “the authority to conduct race-based redistricting (under the Voting Rights Act) cannot extend indefinitely into the future.” In other words, Section 2 was outmoded and should be gutted. That argument, Kavanaugh noted pointedly, was not before the Court in the Alabama case.
Apparently, someone in Washington thinks Kavanaugh might flip if a new appeal presented the “indefiniteness” issue.
In a hearing Monday in front of the three-judge panel, Alabama appeared to be following that script. As reported by Kyle Whitmire of AL.com, the state basically told the judges that it just couldn’t see its way clear to doing what they wanted, and thus suggested that the entire process start again—with the issue of § 2 in play again. At the hearing’s end, one of the judges told Alabama Solicitor General Edmund LaCour, “What I’m hearing is the state of Alabama deliberately chose to disregard the court.”
The question seems to be whether the Supreme Court will let Alabama back it off. The answer is by no means clear.
Defiance of the Court goes back long before George Wallace. In 1832 in Worcester v. Georgia, Chief Justice John Marshall held that Georgia could not extend its laws into Cherokee Nation territory. The state (and President Andrew Jackson’s administration) ignored the ruling, and the Cherokees were expelled to the Indian Territory (now Oklahoma) in the crime now known as the “Trail of Tears.”
After Brown v. Board, Virginia Senator Harry F. Byrd and famous conservative newspaper columnist and later 60 Minutes pundit James J. Kilpatrick organized “massive resistance” to desegregation. The strategy briefly was that any public school ordered to desegregate would be taken over by the state and permanently closed. That strategy delayed serious desegregation for at least a decade and sparked a dramatic confrontation between federal troops and a white mob in Little Rock, Arkansas, in 1957.
In our time, former Alabama Chief Justice Roy Moore twice defied the Supreme Court—once by refusing to remove a Ten Commandments monument he had installed at the court and a second time by allowing state officials to refuse marriage licenses to same-sex couples. Moore was removed twice from his post as Chief Justice by a state judicial fitness panel—but he parlayed his defiance into a U.S. Senate campaign that nearly succeeded in 2018.
I can understand the right’s rage at the Court’s decision in Allen v. Milligan, the Alabama voting case. The conservative legal movement expended decades’ worth of time, treasure, and moral capital to re-create the Supreme Court in its image. Now, it expects the justices to live by the time-honored principle that an honest judge stays bought. Conservatives believe they are entitled to win not most but all the important cases. As time passes, we can expect to see more foot-dragging—defiance disguised as procedure—from red-state attorneys general.
The problem with contemptible behavior is that it draws contempt from friends and foes. Let’s get serious: Everyone sees at least some members of the conservative majority for what they are—not simply intellectually but, to a stunning degree, actually dishonest, the kind of traffic-court hacks who can be bought with dinner at Applebee’s, a dime-store award plaque, and a weekend at Myrtle Beach.
Blue states would be foolish not to try blocking future high-profile, adverse Supreme Court orders. Imagine Congress passes a national abortion ban, or the Court rules that fetuses are “persons”; it would be almost political malpractice for some blue-state governor—let’s call him “Gavin”—not to stand in a clinic door.
And, finally, there is a reasonably high probability that whoever is sworn in as president in 2025 may get into the game. Don’t believe it? Well, consider that the Trump administration considered defying the Court after its 2019 decision, in Department of Commerce v. New York, that the Census Bureau could not add a citizenship question to the 2020 Census questionnaire.
Loyal administration mouthpieces in The Wall Street Journal, The Washington Post, and The Volokh Conspiracy suddenly discovered that the President had unilateral power over that area. (“The census belonged to the president,” right-wing scholar Hugh Hewitt told Post readers. “He needs to get it back.”) The White House and Justice Department said they were creating a new sham administrative record to let the administration return to the Court and say, “Seriously?” In the end, that plan was abandoned for logistical reasons. But if there is a President DeSantis, or a second Trump administration, I predict the executive would ignore any adverse decision. Neither man has shown respect for institutions, laws, or norms (Trump even referred to the “independent judiciary” in scare quotes). Why would the Court be an exception?
As for Democrats, the Court’s majority seems eager to take kill shots at any non-Republican administration. Not since the New Deal has a Court done as much pretzel-bending as it did to block Biden’s student loan forgiveness program. In the future, a Democratic president may find himself as Franklin Roosevelt did in 1935, when he prepared a speech explaining possible defiance of the Court in a case testing whether the President could take the country off the gold standard—a speech that was not delivered because the Court backed off.
A confrontation may not even wait for another President. Last spring, Biden and House Speaker Kevin McCarthy barely averted default on the nation’s debts. After the right-wing revolt against that deal fizzled, the Freedom Caucus seems unlikely to let a similar arrangement stand. The next debt-ceiling crisis is scheduled for January 1, 2025, or shortly thereafter. Imagine a re-elected Biden facing a Republican House that will not listen to reason this time. I have argued since 2011 that a President would have the constitutional duty to set aside the debt-ceiling statute and pay the nation’s debt.
Now imagine the Supreme Court telling him to stop paying it—in effect, ordering him to preside over the economy’s collapse. Honestly, reader, if you were President, what would you do?
If we avoid a fatal debt standoff, some sort of crisis will surely be upon us some time in the next decade. That’s because the Supreme Court has become, in effect, something like the old British House of Lords, a co-equal legislative, not judicial, branch whose role is defending wealth and privilege against the “mob.” This would not do as Britain became more democratic; a series of 20th-century Parliaments cut back on the Lords’ role—and expanded its numbers. Today, its membership is more diverse and has only limited powers.
The example is worth studying. Even without statutory change, defiance of the Court would be a new constitutional norm that limits its power. However it comes, such reform would be a fitting response to a Supreme Court that has lost its way and may soon lose what remains of its authority.
