During the Presidency of Andrew Jackson, he got in a squabble with the Supreme Court that exposed the Achilles Heel of the 3rd branch-the Judiciary.  (Legislative Branch is created in Article 1, the Executive Branch in Article 2, and the Judiciary Branch in Article 3-a potent reminder that the Architects of our system put the legislative branch first, and had Congress built on a hill-Capitol Hill, to illustrate its supremacy)  Increasingly, states were taking on the regulation of Native Americans within their territories. And, in the case of Worcester v. Georgia, the Supreme Court vacated a Georgia state law dealing with Native Americans within the state’s borders. Chief Justice Marshall ruled that the law was invalid because Native Americas were “nations” and the Constitution stated that only the Federal Government could thus regulate the tribes.

Andrew Jackson was contemptuous of Native Americans, feeling very much in line with the times that they were primitive and child-like and should be dealt with as such. His response thus, to the Supreme Court was: Fine,you issued the ruling, now you enforce it. He said that, fully aware that the court, though the final arbiter of what was or was not Constitutional has no power of enforcement. There is no Supreme Court police force that can force a wayward President or member of Congress to carry out one of its orders. And Jackson also knew that the vast majority of the population agreed with him about Native Americans-they simply wanted their government to get the tribes out of the way of their expansion, treaties be damned. A racist President, Congress and nation had little interest in taking such a legalistic view of the Federalist principle of division of  power between  state and federal governments .

So, the Supreme Court can issue whatever rulings it wants, but absent a President or Congress willing to enforce their rulings, they can achieve little or nothing beyond asserting their interpretation of the law. Were Congress to have had a more sympathetic view of Native Americans, or respect for the institutions of our government, they could have found ways to force Georgia to comply with the ruling of the Court.  But neither of those things happened, because hatred of Natives was greater than respect for the rule or procedures established in law. Andrew Jackson later rounded up members of the Choctaw, Chickasaw, Seminole, Muscogee-Creek and Cherokee nations (The 5 Civilized Tribes) from their ancestral lands and in a military-enforced march, drove them to the Oklahoma Territory in what is referred to as the “Trail of Tears.”

We are in a similar situation today. We have a 4-4 split in the court that renders it powerless in the case of an ideological divide. Any split defers back to the lower court decision from which the appeal came. So we have a weakened Supreme Court that is almost incapable of rendering decisive opinions on important matters that invoke strong ideological divisions. And, this current Republican Administration has shown its contempt for law and rulings of the court. His first act was in firing Sally Yates, acting Attorney General, for issuing a directive to the Justice Department to not argue in defense of the Muslim ban until the constitutionality of the act could be determined. It was not a defiant act–it simply said that on its face, there was a potential constitutional issue involved that needed to be addressed. Should the courts uphold its constitutionality, the act could and would be defended. And, when subsequent court rulings did not go the Administration’s way the current Republican President expressed his contempt for their power, calling James L. Robart, a George W. Bush appointee a “so called judge” when he issued a temporary stay on the Muslim ban, which was issued by Executive Order. His temporary restraining order on the enforcement of the Muslim ban was then upheld unanimously by a 3-court panel of the 9th Circuit Court. And following that rebuke he tweeted, “see you in Court!”

Absent respect by officeholders for law and the institutions of our government, opposing such a situation becomes much more complicated. One of the reasons of course that the President wants to appoint a very conservative Supreme Court judge in Scalia’s position is to lessen the possibility that he will have decisions go against his own interests. But that situation is up in the air right now because there is some suggestion that Democrats might filibuster his nominee. So, if the court remains divided, and/or the current Republican President continues to buck the courts’ authority, he could simply ignore their decisions or the decisions of lower federal courts,  and with both houses of Congress being majority Republican, there is little to suggest that, other than for a few rogue members, they will hold him to account. With little interest on the part of the Republican Congress to hold the Administration’s feet to the fire for deeply troubling information coming out daily regarding Russian influence in our electoral and governance systems, the potential for serious damage to be done is enormous. We have a President who clearly sees the courts as obstacles to his rule by fiat, and a Republican party willing to ignore his depredations.

What we must remember is this: that laws and rules are only as good as the willingness of those whose job it is to enforce them. After the 1954 Brown vs Board of Education decision ruling that separate schools for Blacks and Whites were inherently unequal and thus unconstitutional, (one of the rare cases where the Supreme Court overturned a former decision: Brown overturned Plessy v. Ferguson, (1896), which upheld the principle behind Jim Crow laws, that establishing “separate but equal” facilities for Blacks and Whites was not unconstitutional) many Southern states simply refused to abide by the Brown ruling; Their resistance led the Supreme Court to issue “Brown II” in late 1955, admonishing that they must integrate their schools “with all deliberate speed.” Some states, Virginia perhaps most prominently, simply ignored the decision and shut down some Public School Systems, granting White citizens vouchers allowing them to send their kids to White-only private schools. Some Black students had no schools to go to for a few years as a result. “The Gray Plan [Virginia] recommended that the General Assembly pass legislation and allow for amendment of the state constitution so as to repeal Virginia’s compulsory school attendance law, to allow the Governor to close schools rather than allow their integration, to establish pupil assignment structures, and finally to provide vouchers to parents who chose to enroll their children in segregated private schools. Virginia voters approved the Gray Plan Amendment on January 9, 1956.”  Wikipedia

There are some hints that the current administration’s contempt for law, resistance and decisions of the court will not stand. Judge Gorsuch, nominated by the President to fill Scalia’s seat spoke out against his demeaning comments against Robart and the 9th Circuit Court. The Democratic Party leadership has protested vehemently against his comments, and even some Republican members of Congress have expressed their distaste, both for his attitude towards Muslim immigrants and the courts opposing his orders. In addition, the “street” has become the locus of lots of protest activity against the excesses of this 3-week old Republican Administration and the lassitude of Congress in holding him accountable. So, unlike Jackson, who had public opinion with him and no significant opposition to what he wanted to do. the current President has alienated and angered many very influential centers of power: The media, the Judiciary, the Intelligence community, and arguably, a majority of the public.

The past is only very imperfectly precedent in looking at our current situation. The contempt for the fundamental principle of divided power by Jackson, his hatred of opposition, his entitled sense of his own power to rule they way he wanted and the feeling that he was the very embodiment of the people’s will are all traits shared by the current Republican in the White House. Jackson was right–the overwhelming majority of Americans shared his racist attitude towards Native Americans which gave him the ability to stretch the limits of his power. Such is not the case with our current President–which may well significantly limit his ability to violate fundamental rules in the practice of our system of government. He was elected by 27% of all eligible voters and, three weeks into his administration he has already sunk to 40% approval and 55% disapproval ratings. But we must be vigilant in our opposition to him to limit the damage that he can do. Our current President is clearly not one to believe bad polls or to willingly tame his own damaged ego in defense of higher principle.

9:14pm: Just found this from an article today in Law.com.

“The deans of Yale Law School and Harvard Law School have joined the growing chorus of lawyers publicly condemning President Donald Trump’s attacks on the judiciary.

In a blistering op-ed in The Boston Globe on Friday, Harvard’s Martha Minow and Yale’s Robert Post wrote that Trump’s Twitter-delivered insults against the federal judges who stayed his controversial travel ban risk making the president “an enemy of the law and the Constitution.”

“By questioning the legitimacy and authority of judges, Trump seems perilously close to characterizing the law as simply one more enemy to be smashed into submission,” the deans wrote. “At risk are the legal practices and protections that guard our freedom and our safety from the mob violence that destroyed democracies in the 1930s.”

Trump called U.S. District Court Judge James Robart, who initially stayed the travel ban, a “so-called judge” on Twitter. He then went after the appellate panel for leaving Robart’s order in place, calling their ruling “disgraceful,” among other comments. Last year, Trump accused the judge hearing a lawsuit over his Trump University of bias due to the jurist’s Mexican heritage.

Post said in an interview Monday that he is generally reluctant to weigh in on matters outside the scope of the law school, but Trump’s hostility to the courts demanded a response. “I felt that what’s going on here was really an attack on the rule of law,” Post said. “It’s the mission of the school to preserve and sustain the rule of law, so it came under my obligation as a steward of the institution.”

Post and Minow aren’t the only lawyers weighing in. The legal profession has been vocal in its criticism of Trump’s repeated disparagement of judges.“