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THE PRESIDENT

Other than the right to appoint judges and justices, the president has little direct control over the judiciary. Disputes between the president and the Supreme Court are legion through American history. With little Constitutional power, the president must persuade Congress to use its legislative powers to control the courts. The classic example of the president's ability to persuade Congress to change the Supreme Court was when, in 19.57, President Franklin Roosevelt tried to pack the Supreme Court in order to uphold New Deal legislation.

President Roosevelt's attempts might constitute the notorious rift between the chief executive and the Court, but he was not the first president hostile to sitting federal judges. President Thomas Jefferson was passionately hostile to Chief Justice John Marshall and much of the federal judiciary. The partisan rivalries evident elsewhere in the early republic were vividly displayed during Jefferson's tenure. While Jefferson's Republican party dominated Congress in 1801, the Federalists still controlled the judiciary. In response, Jefferson attacked the federal judiciary on several fronts. His party repealed the Judiciary Act of 1801, which had created federal circuit courts, with judicial positions all filled by Federalists. Jefferson encouraged the House in impeaching New Hampshire District Court Judge Pickcring, and then suggested the
House begin impeachment proceedings against Justice Samuel Chase. After Chase was impeached but not removed, President Jefferson's direct attacks on the Federalist judiciary subsided.

At times, legislative actions directed at the Supreme Court are merely the result of bitter controversies between the president and Congress. For example, during Andrew Johnson's presidency, Congress and the president were constantly at odds. Andrew Johnson was such an unpopular president that when he tried to fill a vacancy on the Supreme Court his nominee was rejected. After letting the vacancy sit for two years he tried again. This time Congress not only denied confirmation of his nominee, it also immediately voted legislation reducing the size of the Court. To be safe, Congress reduced the number of justices by two, refusing to allow Johnson a nominee for the current vacancy, or any new one likely to arise before the end of his term.

The Supreme Court is the final arbiter of Constitutional interpretation, but it has no separate authority to enforce its decrees. Generally, the Court's orders are followed, but at times parties have refused to submit to the federal court's authority. In these instances of non-compliance, any enforcement action must be undertaken by another branch of government.

Historically, the executive branch has enforced Supreme Court decisions regardless of the president's own personal opinions. Rarely does the president or Congress refuse to comply with a judicial order. Such cases usually involve political disputes going to the nature of the checks and balances that exist at the heart of America's political system. In one recent case, President Richard Nixon refused to comply with a legislative subpoena ordering him to produce tapes then under Congressional investigation. Citing executive privilege, Nixon argued Congress had no power over the executive branch. Then the special prosecutor, acting in a judicial capacity, subpoenaed the tapes. Finally, in U.S. v. Nixon, the Supreme Court unanimously held the president had to obey the special prosecutors subpoena. Article III of the impeachment charged Nixon with violating the presidential oath of office by failing to comply with the House Judiciary subpoena. Nixon's resignation left unresolved the question of whether the legislative branch has the political authority to subpoena the executive branch. The Supreme Court only declared its judicial orders must be obeyed, which Nixon ultimately did. Other judicial decisions, however, are allowed to languish without enforcement. For example, while Brown v. Board of Education ordered desegregation "with all due speed," the other branches of government did little to ensure desegregation was actually accomplished.

The most extreme example of a United States president refusing to enforce a Supreme Court decision arose as a result of the Court's opinion in Worcester and Butler v. Georgia. Justice Marshall and the Supreme Court ruled that the Cherokee nation was an independent nation with full sovereignty over all its land. However, Georgia refused to recognize the Supreme Court's judicial authority, declining to even argue the case before the Court and openly flouting its decision. Justice Marshall's decision implied that it was the presidents responsibility to enforce federal treaties. President Andrew Jackson is alleged to have said, "John Marshall has made his decision; Let him enforce it if he can." The president not only refused to acknowledge the Courts decision, he assisted the state in contravening it by ordering federal troops to help state troops evacuate the Indian tribes. President Jackson used his executive power to override the decision of the Court and make possible the seizure of Cherokee nation lands by forcibly removing its Indian inhabitants from the southern states of Georgia and Florida. The evacuation is commonly referred to as the Trail of Tears due to the numbers of Indians that died as a result of the harsh, cruel conditions of the forced winter march. No other president has so explicitly and flatly denied the enforcement of a Supreme Court decision.

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TITLE: Law and Legal Services at CitiMall.com Online Shopping Mall

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