Gephardt's Faux Pas

Everyone is talking about what Richard Gephardt said a few days ago: "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day." (Glenn Reynolds has discussed it here, here, here, here, here, and here; Eugene Volokh here, here, here, and here; Andrew Sullivan here; Jack Balkin here; Jeff Cooper here; Phil Carter here; Pejman here.)

So far, all agree that what Gephardt said was exceedingly stupid. Everyone agrees that a President cannot "overcome" the Supreme Court by executive order.

But to play devil's advocate here, I think it might be profitable to recall the thoughts of Presidents Lincoln, Jefferson, and Jackson on the limited extent to which Presidents must obey the Supreme Court:

From Lincoln's speech in Springfield, IL, July 17, 1858:

Now, as to the Dred Scott decision; for upon that he makes his last point at me. He boldly takes ground in favor of that decision.

This is one-half the onslaught, and one-third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott’s master, and against Dred Scott and his family, I do not propose to disturb or resist the decision.

I never have proposed to do any such thing. I think that in respect for judicial authority my humble history would not suffer in comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the Government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.

One might also recall Lincoln's Emancipation Proclamation, which is not entirely consistent with an attitude of complete deference to the Court's Dred Scott decision.

Then there's this, from Jefferson's letter to Mrs. John Adams in 1813:

You seem to think it devolved on the judges to decide on the validity of the Sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.

And finally, this from Andrew Jackson's veto of a bill establishing a national bank, July 10, 1832:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled.* * *

The opinion of the Judges has no more authority over Congress then the opinion of Congress has over the Judges, and on that point the President is independent of both. The authority of the Supreme Court must not therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Now one can raise quibbles about whether Gephardt's promise could realistically have been carried out, had the Court come down strongly against affirmative action in the university context. It is difficult to imagine how a presidential executive order could skirt that ruling and mandate the continued use of affirmative action by state universities. But even if the ruling had gone in that direction, the President could resist by continuing the use of affirmative action in federal contracting, for example. And such an action would seem to be consistent with the words of many Presidents who have claimed the authority to resist, undermine, and limit the impact of a Supreme Court decision with which they disagreed. (The merit of any particular decision to resist is another matter; my only point is that distinguished Presidents have, albeit in more eloquent and thoughtful phrases, expressed a thought similar to Gephardt's.)