Summary: The Supreme Court’s move to the right has raised questions of the Court’s ability to enforce its rulings. 

To many Americans, the confirmation of Justice Brett Kavanaugh marked the Supreme Court’s move to the ideological right. The country is wondering how this will affect rulings on landmark issues such as abortion, religious liberty, the rights of the LGBTQ community, and more. Americans have long looked at the Supreme Court as an authority to protect the people from unconstitutional executive actions, laws, and statutes. It is often seen as the last line of defense to protect civil liberties.

However, the Constitution does not establish a basis for the court to enforce its decisions. In early American history, the Court’s role in government was unknown. The Constitution, in Article III: sections one and two, establishes the Supreme Court as the highest court in the land. It was not until 1803, that the Supreme Court established its authority in Marbury v. Madison (1803). The Supreme Court, unanimously, ruled that it had the power to strike down laws, statutes, and government actions if they were found to be unconstitutional. This move was unprecedented. The Court’s power was being derived from their own ruling and not from any specific part of the Constitution.

The source of the Supreme Court’s power raises questions of the legitimacy of the Court and its rulings. In 1831 and 1832, the Supreme Court heard two cases involving the Cherokee Nation and the State of Georgia. In Cherokee Nation v. Georgia (1831), the court ruled that it was incapable of hearing the case due to issues of standing. They cited the issue of jurisdiction and an inability to classify the Cherokee Nation as a foreign nation or as a people within the United States. They did not deliver a formal ruling but acknowledged that the Cherokee had faced oppression and persecution by the Georgian citizens. The second case, Worcester v. Georgia (1832), dealt with the Constitutional ability of Georgia to convict Samuel Austin Worcester of the Cherokee Nation. The Court ruled that Georgia did not have the authority under the Constitution to convict Samuel Worcester. Ultimately, Georgia and President Andrew Jackson defied the court’s rulings and continued to forcibly remove the Cherokee from the Georgian territories. This is an early instance of the Supreme Court lacking a Constitutional mechanism to enforce its decisions or have its authority recognized.

In 1954, the Supreme Court heard the case Brown v. Board of Education of Topeka (1954). This case dealt with the segregation of schools and represented a consolidation of cases from Kansas, Delaware, South Carolina, Virginia, and Washington D.C. The court reversed the ruling in Plessy v. Ferguson (1896) that established “separate but equal” doctrine. They ruled that separate facilities violated the Equal Protection Clause of the 14th amendment. The Court issued that schools should be desegregated “with all deliberate speed.” The Court had no way to enforce their decision and the ruling was blatantly defied by multiple authorities within state governments. For example, in 1957, Governor Faubus of Arkansas sent in the Arkansas National Guard to prevent the “Little Rock Nine”, nine black children, from attending and integrating Little Rock Central High School. After this initial failed attempt to enter the school, it was left to President Eisenhower to secure the students’ entrance into the school and enforce the Supreme Court’s ruling. There were many southern governors and powerful local and city officials that scoffed at the Court’s ruling that challenged racist legislation.

Another instance shedding light on the Court’s lack of enforcement mechanism is Roe v. Wade (1973). Since the ruling, many states have placed restrictions on abortion. In 2016, Whole Women’s Health v. Hellerstedt (2016) was brought to the Supreme Court. In this case, Texas had placed certain requirements for abortion clinics to stay operable. This prompted the closing of dozens of abortion clinics and the Supreme Court ruled violated Roe v. Wade (1973). Despite long-standing precedence from 43 years ago, Texas defied and circumvented the court’s landmark ruling. This ruling set precedence for many abortion cases brought forth since 1973. The Court’s inability to ensure enforcement allows those rulings to be repeatedly challenged and ignored. It is clear, however, that the court has no mechanisms that allow it to force adherence to their decisions.

The Legislative and Executive Branches’ duties are to either create or execute the law in accordance with the Constitution. The Supreme Court is to interpret the Constitution and to ensure laws are in compliance with this governing document. The Legislative Branch has language in the Constitution granting Congress the power to enforce the laws that they draft. For example, in the 13th amendment section two, the Constitution states that “Congress shall have the power to enforce this article by appropriate legislation.” The executive branch has a vast number of agencies and departments that are tasked with enforcing the laws and statutes of Congress and executive orders issued by the President. The Supreme Court lacks an enforcement mechanism which challenges its authority.

As Justice Kavanaugh takes the bench, many Americans, particularly those on the left, will be faced with a Court more to the right than before. After a controversial hearing process and a close confirmation vote, some Americans may want to possibly defy the Court’s decisions on certain landmark issues. We should not be surprised to see certain states, such as New York and California, challenge rulings and possibly force a larger debate on the Court’s authority and relevance.