By Alex Twinem
Before late summer 2015, Kim Davis was just another county clerk. Today, she is more famous than Ted Cruz. Davis has become a media fixture as the Kentucky county clerk who stopped giving out marriage licenses after the Supreme Court’s decision in Obergefell v. Hodges, citing her religious objection to same-sex marriage. A federal district judge held her in contempt for refusing to issue or certify same-sex marriage licenses, though some have argued that Davis may have a right to certain accommodations for her religious beliefs. A lawsuit against Davis addressing those issues is currently on appeal.
Cruz, the senator and presidential hopeful, has fueled the fire of the Kim Davis saga – appearing alongside Davis and Mike Huckabee at the rally for her release, to the theme of Survivor’s “Eye of the Tiger” (a legal debacle of its own for another day). In a statement released on his website, Cruz called Davis’s arrest “judicial lawlessness crossed into judicial tyranny” and called for “every Believer, every Constitutionalist, every lover of liberty to stand with Kim Davis” – ostensibly at the expense of enforcing the Supreme Court’s ruling. Indeed, Cruz presaged Davis’s rise to fame, arguing in the days following the Obergefell decision that clerks could object to issuing marriage licenses to same-sex couples and that states not expressly named in the decision had “no legal obligation to acquiesce.”
Davis and Cruz are not alone. Vance D. Day, an Oregon circuit judge, is now refusing to perform marriages between same-sex couples, arguing it violates his First Amendment rights. In Alabama, a probate judge named Nick Williams filed a brief with the state’s supreme court asking it to nullify Obergefell v. Hodges and has recently also filed a protective order petition requesting that he not be forced to issue marriage licenses to gay couples. Similar examples have also sprouted up in Texas, Indiana, and Ohio. Even the Pope appears to have weighed in – he met with Davis during his recent trip to Washington and later stated that the right to conscientious objection is “a right that is a part of every human right.” While the Pope did not explicitly endorse the disregarding of Supreme Court decisions as part of that right, some news outlets have already interpreted it that way.
What does all this resistance from government officials to the Supreme Court’s decision say about the Court’s role in American government and society? Does everyone have to follow the Supreme Court’s interpretation of the Constitution?
Resistance to the Supreme Court’s authority is nothing new. In 1803, the landmark case of Marbury v. Madison established the Court’s power to review the constitutionality of actions by other branches of government. But the case also highlighted the Court’s inherent weakness. The lawsuit asked whether President Thomas Jefferson’s new Republican administration had to honor the last-minute appointment of a justice of the peace by the outgoing Federalist president. Chief Justice John Marshall knew that if the Court ordered the Jefferson administration to install Marbury as justice of the peace (as he’d been promised by John Adams), Jefferson would simply refuse to follow the ruling. So Marshall wrote an opinion declaring that courts have ultimate authority to interpret the Constitution, but declining – on technical legal grounds – to actually order Jefferson’s administration to grant Marbury his position.
Resistance to the interpretive authority of the Supreme Court has occurred regularly ever since. After an adverse decision in Worcester v. Georgia (another Chief Justice Marshall classic), President Andrew Jackson is said to have responded, “John Marshall has made his decision; now let him enforce it!” In the 1950s, the Court outlawed school segregation in Brown v. Board of Education, then had to issue another opinion in Cooper v. Aaron calling for “the obedience of the States,” after southern states asserted the power to ignore Supreme Court decisions with which they disagreed. Cooper asserts judicial supremacy – that is, the power of the Supreme Court to serve as the ultimate authority over the meaning of the Constitution, binding on both the federal government and state governments.
These cases of resistance demonstrate the judiciary’s weakness as an independent branch of government. Judges must rely on other government officials – in the executive or legislative branches of the federal government, or in state or local governments – to implement and enforce their orders. When those other divisions of government disagree with the Court’s decision, the Court may be forced to curtail its own actions (as in Marbury). Or the Court might hope that it has enough support among other divisions of government to carry out its directives (as in Brown, which was enforced by President Eisenhower’s deployment of the Army’s 101st Airborne Division to ensure the African American students’ safety, and later bolstered by congressional passage of the Civil Rights Act).
Of course, the judicial branch has substantial powers to encourage compliance. For one, lower courts may hold steadfast objectors in contempt of court. Such specific contempt orders are almost certain to be enforced, therefore helping to bring intransigent officials into compliance. That’s how Kim Davis wound up in jail. Courts also have the lesser-known ability to fashion other kinds of solutions. For instance, the judge in Kentucky could have forbidden Davis from issuing marriage licenses, effectively transferring her power to another state official or ordered the county to withhold some portion of Davis’s salary attributable to marriage-licensing.
But the fact remains that these solutions are, in the end, words on a page. When push comes to shove, somebody other than a judge must escort the holdout to jail. Thus, at bottom, the Court’s decisions are constrained by the views of other branches and levels of government. Unless the Court stays within the bounds of what other government officials consider plausible, legitimate views, it is powerless to carry out its holdings. So while the Court – comprised of unelected, lifetime-tenured judges – is often vilified as undemocratic, it is ultimately accountable to the people and their representatives.
The Supreme Court (and conventional wisdom) would say that everyone does have to follow the Supreme Court’s interpretation of the Constitution. But challenges to that view – from history, legal scholars, and modern Kim Davises and Ted Cruzes – abound. And despite the controversy and occasional firestorm, that debate is probably a good thing. It reminds us that the Court, with “neither force nor will,” takes part in an “ongoing dialogue between and among the branches of Government.” In the end, it’s your democratically elected representatives who shape what vision of the law is followed.
Brittany Jones is the president of the Stanford Law Review. Alex Twinem is one of the Stanford Law Review’s managing editors. Michael Qian is one of the Stanford Law Review’s executive editors. Danny Kane is one of the Stanford Law Review’s senior editors.