What If the Supreme Court Simply Ignores the Constitution?
John J. Reilly has speculated about the possibility that the Supreme Court might ignore the Constitution instead of editing it:
Are these imaginary horribles really going to materialize? I think not, but there will be a test of strength that will break the judiciary. It could come about in connection with attempts by the Supreme Court to constitutionalize the status of homosexuals or women in the military; certainly there will be fireworks if conscription is ever reintroduced. Like its 1930s predecessor, the Court could strike down popular social legislation, this time legislation that specifically aimed at promoting the nuclear family. The most intriguing possibility, though, is that the Court will try to ignore a textual amendment to the Constitution.
Senator Frist, I see, is likely to introduce an amendment that would define marriage in heterosexual terms. I dislike very specific constitutional amendments, and this is not really the sort of thing the federal government should be dealing with anyway. In this case, however, the political branches have no choice, since the Supreme Court has already federalized the issue.
The point to keep in mind is that amendment may not be enough. There are arguments in the law schools to the effect that some aspects of constitutional law cannot be changed, even if the text of the constitution is amended to say otherwise. That is, courts would be within their rights to ignore certain new amendments, such as one that tried to limit Roe v. Wade. It is hard to imagine that the Court would simply ignore a marriage amendment, but it might well try to construe it so narrowly that it would not mean anything. Then, I think, something would snap.
The following week, the Nevada Supreme Court apparently did so:
Nevada Supreme Court orders violation of Nevada Constitution: I just read one of the most appalling judicial decisions I've ever seen. It was just handed down today, and it's available here (Guinn v. Legislature).
Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)
The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:
This is particularly worrisome since earlier examples of judicial activism usually involved pencilling in an additional clause or two instead of wholesale deletions and, as far as I know, judges never went against an ammendment that might have been intended to prevent judicial activism. Is civil disobedience appropriate? Does the US Supreme Court have the authority to get involved? If the US Supreme Court does something similar, can Congress or the President ignore them or do they have to go along with the Supreme Junta? If there is official civil disobedience, and the President tries a coup later, will the Supreme Court still have the authority to stop it?