The Supreme Court

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There is, of course, no guarantee that the Supreme Court’s opinions will have an immediate effect on the nation as a whole when any of these cases is finally decided, for among the powers denied the Court is any real means oi” enforcement. Congress can overrule the Court through constitutional amendment or by further statutory enactment. Under our system of dual federalism the states mayturn, as they have several times in the past, to the doctrine (now discredited) of nullification. Or, as the history of compliance with the Court’s school-desegregation decisions shows, they can resort to loot-dragging and delay in implementing Court orders—tactics reminiscent of Andrew Jackson’s refusal to prevent the removal of Cherokee Indians from Georgia in 1832, when he allegedly said: “John Marshall has made his decision; let him enforce it.” Since 1789 there have been a number of schemes proposed—from the abolition of the Court entirely to Theodore Roosevelt’s proposal that controversial decisions be subjected to a national referendum—to curb excessive judicial power.

But on the whole, the Court’s power has been visible and effective, primarily because the American people have been willing to accept the primacy of law and the moral suasion that the Court consistently reflects.

Despite recurring reservations about its secrecy and the elitism it engenders, in spite of persistent complaints that the Court has sometimes run counter to prevailing sentiment or ignored pressing social ills, the nation historically has embraced the judgment Alexis De Tocqueville rendered more than a century ago: “The peace, prosperity, and very existence of the Union rest continually in the hands of these … federal judges. Without them the Constitution would be a dead letter. …”

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