- - Monday, September 12, 2016

Throughout our nation’s history, U.S. presidents have struggled with the Supreme Court, vying for power and tussling to get the upper hand over the judicial branch. Some presidents have even relished the fight.

In a testament to the brilliance of the American system, however, once the high court has issued definitive rulings in important cases — even controversial ones — most chief executives have accepted their fate with dignity.

The sparks and tension between the executive and judicial branches should not come as a surprise: The language spelling out the powers of the presidency in Article II of the Constitution, which consists of barely a thousand words, is famously imprecise. The Framers, including Alexander Hamilton, consciously left many of the details of this unprecedented new office to be filled in over time. They were gambling that George Washington — a steady and cautious leader — would be selected as the first president and chart a wise course for future chief executives.

Washington fulfilled that plan in magnificent fashion. Yet many of his successors were left to write on a blank slate, as they dealt with fast-moving events, crises and historic challenges and forced to flesh out the powers of this novel American office. And when presidents have felt their turf is being threatened, they haven’t been shy about calling out the Supreme Court.

Thomas Jefferson was openly skeptical of Chief Justice John Marshall (his distant cousin) and loathed Marshall’s landmark opinion in Marbury v. Madison (1803), establishing the principle of “judicial review” and giving the Court final say over what the Constitution meant. Jefferson railed against this decision long after he left office.

Martin Van Buren, the eighth president, tried to influence the Supreme Court to adopt his strong pro-slavery position. In the famous Amistad case, a group of Africans who’d been seized by Spaniards from their homes in Sierra Leone and sold into slavery in Cuba, revolted. After killing the ship’s captain and ordering the crew to return to Africa, they were apprehended in U.S. waters outside Connecticut and charged with mutiny and murder.

President Van Buren sided with Spain, arguing that the Africans belonged to that nation and directing his attorney general to convince the Supreme Court of this position. Ironically, former president John Quincy Adams — now a member of Congress and an ardent abolitionist — argued the case in the Supreme Court against Van Buren’s administration, contending that the Africans were free men and needed to be released.

The Supreme Court agreed with Adams, and the Africans were returned to Sierra Leone. This was a public embarrassment for Van Buren, but he quietly took his lumps.

Teddy Roosevelt, former boxer and free-swinging Progressive president, was outraged when the Supreme Court (and his own appointee Oliver Wendell Holmes) struck down a key piece of his Progressive agenda in Lochner v. New York (1905). TR began a campaign to whittle down the judicial branch, but ran out of gas before he left office. Yet TR’s distant cousin, Franklin D. Roosevelt, continued the family tradition by trying to pack the Supreme Court with additional justices after the Court invalidated key pieces of his New Deal legislation. When the high court did an about-face and supported FDR’s New Deal legislation, FDR dropped his court-packing plan and declared victory.

In modern time, George H.W. Bush — a decorated World War II Navy pilot and avowed patriot — bristled when the Supreme Court handed down its decision in Texas v. Johnson (1989), holding that burning an American flag could amount to protected speech under the First Amendment. Yet when Congress next tried to pass a law making flag-burning illegal and punishable by jail time, Bush refused to sign the bill.

Despite his own distaste for the Supreme Court’s decision, Bush respected that institution’s preeminent power to interpret the Constitution. He urged Congress to pass a Constitutional amendment to override the Court’s flag-burning decision if it wished to undo Texas v. Johnson, but he refused to defy the high court.

By design, the boundary lines between the presidency and the judicial branch are often unclear. Yet when push has come to shove, most presidents have accepted the final verdict of the Supreme Court with resignation, and even grace.

History suggests that friction and sparks will continue to mark the relationship between American presidents and the Supreme Court; yet history also illustrates the durable nature of the system constructed by the Framers. It provides reason to hope that the tradition of mutual respect between presidents and the high court, and their practice of working out differences, will continue — even in loud, deeply partisan, and seemingly noncooperative times.

Ken Gormley, J.D., is president of Duquesne University in Pittsburgh and an award-winning author. Most recently, he is editor of “The Presidents and the Constitution: A Living History,” published by NYU Press (May, 2016).

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