When push comes to shove

The game will already be lost

Will Donald Trump defy the Supreme Court?

Many people, including me, have declared this to be the crucial current test of America's tradition of republican government under the rule of law. The president has been pressing against longstanding restraints on executive power. The high court has yet to draw a sharp line in the sand. If it does, will the president step back? Or will he cross it?

Trump isn't the first ambitious president. He's not the first to challenge accepted norms. Yet very rarely in American history has a president crossed a sharp line drawn by the Supreme Court, primarily because the Supreme Court has taken pains not to draw sharp lines against presidents.

The Constitution as written in 1787 said nothing about the authority of the Supreme Court to restrain the president or Congress. John Marshall in 1803 broke the silence to claim for the high court the right to overturn acts of Congress. Yet he did so artfully. In Marbury v. Madison, the chief justice gave Thomas Jefferson the outcome Jefferson wanted — no federal judgeship for Marbury — by declaring a decade-old law unconstitutional. Happy with the result, Jefferson saw no reason to challenge the process.

Three decades later, Marshall's court handed down a ruling Andrew Jackson didn't like, in favor of Cherokee plaintiffs against the state of Georgia. But Marshall took care not to demand anything of the president, knowing Jackson would probably ignore such a demand. Marshall died in 1835, and the Cherokees were forcibly removed from Georgia by Jackson's successor, Martin Van Buren.

In 1857 the Supreme Court of Roger Taney taught the nation the perils of judicial overreach. For the first time since 1803, the court declared a congressional statute unconstitutional. In the Dred Scott case, the Taney court attempted to resolve the divisive issue of slavery in the federal territories by saying that Congress had no right to forbid it there. This negated settled law of four decades’ duration and inflamed the slavery issue all the more. A direct line ran from the Dred Scott decision to secession and the Civil War.

The justices of the Supreme Court remembered the Dred Scott fiasco when they delivered their verdict in the 1896 case of Plessy vs. Ferguson. The 14th Amendment required that no one be denied equal protection of the laws. The southern states were determined not to grant that equal protection to black people. If the court had insisted on enforcing the 14th Amendment, it would have struck down the Louisiana Jim Crow law at the heart of the case. But the court recognized that doing so would invite Louisiana and the other southern states to ignore the ruling. Less than twenty years after the end of Reconstruction, neither the president nor Congress had the stomach to reimpose martial law on the South. So the court devised a formula — “separate but equal" — that paid lip service to equal protection while delivering southern blacks to the segregationists.

Four decades later the Supreme Court blinked again. In Franklin Roosevelt's first term, the court had negated important pillars of the New Deal. The 1936 election had been a thunderous endorsement of Roosevelt and an implicit rejection of the court. Roosevelt came after the court in 1937 with a proposal to add liberal justices to neutralize the conservative majority. The court-packing scheme elicited loud disapproval of Roosevelt but not before the conservative justices decided they needed to enter the 20th century. Modest rewritings of the rejected laws won the chastened court's approval and saved the New Deal.

The 1954 case of Brown vs. Board of Education, often interpreted as the decisive blow against segregation, was less than it seemed. It confined itself to schools, and public schools at that. When southern states closed their public schools rather than integrate them, the court took no action. Not till three years later, when the governor of Arkansas made a political production of flouting federal authority, did Dwight Eisenhower take it upon himself to deploy troops to integrate Little Rock schools. Even then, the larger edifice of segregation remained — for Congress to overturn in the 1964 Civil Rights Act.

John Roberts is a student of history. And of course a student of the Constitution. He knows that the Supreme Court has no independent enforcement arm. He knows that the judicial branch has authority but not power. He realizes what his predecessors as chief justice realized: that in a straight-out contest with the other branches of the federal government, especially the executive branch, the court will likely lose. And if it loses once on a major issue, the spell that has held the American republic together for a quarter millennium might be broken irreparably.

Americans embrace the conceit that ours is a republic of laws. That's not quite right. America is a republic of a shared conception of what laws ought to do. If that shared conception ever breaks down — if push ever really does come to shove — the republic will already be lost.