“Because We Are Final”: Brown v. Board of Education and the Enforceability of Supreme Court Decisions
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The late Justice Antonin Scalia, testifying to the Senate Judiciary Committee in 2011, recounted the experiences he had with high school, college, and law students interested in the law. “I ask them, what do you think is the reason that America is such a free country? What is it in our Constitution that makes us what we are?” Justice Scalia expressed his disappointment in their response that the Bill of Rights is what makes the United States special. “Every banana republic has a bill of rights. Every president for life has a bill of rights.” Using the Soviet Union as an example, Justice Scalia observed how many autocratic countries have more far-reaching bills of rights, including more specific protections of liberties. “Of course, they were just words on paper, what our Framers would have called ‘a parchment guarantee.’”
What set the United States apart was its “structure” — a system upheld by people of integrity and honor who preserved values and traditions through generations. Often, it falls on the Supreme Court to defend these principles. Seventy years have elapsed since the Court handed down its landmark decision in Brown v. Board of Education, a case that ultimately tested the nation’s commitment to enforcing judicial rulings. The opinion, however, was challenging to implement, as the Court depends on other branches of government to affirm its institutional legitimacy. Similar challenges persist today, as the Court’s authority remains vulnerable to its own decisions and the public’s trust in its interpretative consistency and integrity.
Developing nations working to establish the rule of law face similar questions: When a court interprets the law, will other branches comply? Will the public follow suit? Today, we assume the answers to these questions to be a resounding “yes.” Yet, throughout our nation’s history, Supreme Court decisions have been defied by presidents, states, and the public alike. The Court’s legitimacy is fragile. It’s even subject to erosion by its own decisions, as recent cases reveal.
But Brown is when our nation’s traditions were put to the test. As early as 1775, John Adams envisioned “a government of laws and not of men.” Paradoxically, it remains incumbent upon the citizenry to respect the Court’s decisions. And so, the challenge remains: What is the institutional mechanism to ensure that outcome?
Foundations of Judicial Authority
The Court struggled with that question for decades after the Constitution’s ratification. Indeed, after the high court recognized its power of judicial review in the 1803 case of Marbury v. Madison, it did not exercise it again until more than half a century later, in Dred Scott v. Sandford. This hesitance is striking, implying that the Court feared invoking its inherent power to strike down laws as invalid too aggressively or often would have too profound an impact on the judiciary’s public perception.
Consider Worcester v. Georgia from 1831. The Marshall Court ruled Georgia could not regulate occupants of Cherokee land. But enforcing the judgment would be a different story. Justice Joseph Story did not believe that President Jackson would interfere if Georgia resisted enforcement of the Court’s decision. He made a grim prediction: “If he refuses to exercise the power vested in him” to enforce the decision, “the Union of the States will be dissolved.” The New York Daily Advertiser reported that “[t]he President has said within a few days past, that he had as good a right, being a co-ordinate branch of Government, to order the Supreme Court as the Court have to require him to execute its decision.”
When Worcester’s lawyers asked the Georgia court to release him, they refused. Similarly, in a message to the state legislature, Governor Lumpkin declared, “I have ... been prepared to meet this usurpation of Federal power with the most prompt and determined resistance.” Justice Story’s worries were not unfounded: President Jackson announced that “[t]he authority of the Supreme Court must not ... be permitted to control the Congress or the Executive.” “Well: John Marshall has made his decision,” President Jackson reportedly taunted. “[N]ow let him enforce it.” Recognizing the dangers inherent in that position — vesting individual citizens and states with the authority to determine the law for themselves — the president reversed course during the Nullification Crisis of 1832: “If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy.”
The prospect of states unilaterally nullifying federal laws or Supreme Court decisions threatened to transform the Union into a voluntary confederation — a configuration the Framers explicitly rejected after witnessing first-hand the disastrous results of the Articles of Confederation. For instance, the Federalists had rejected the state of New York’s proposal to ratify on the condition that the state would retain the authority to “withdraw herself from the Union” if Congress never took up the discussed Bill of Rights amendments (1). This would have been unworkable, as the states were required to give up their sovereignty upon ratification. “The Constitution did not say that states would remain sovereign. This, too, was a pointed omission, and every leading Anti-Federalist got the point.”
While Worcester’s eventual resolution achieved his release, the outcome, nonetheless, betrayed the very purpose of the appeal—protecting Cherokee land. Eventually, President Jackson “[sent] federal troops to Georgia, not to enforce the Court’s decision, but to evict the Indians” (2). President Jackson brazenly declared he “had ceased to recognize” any Cherokee state in open defiance of the Court’s decision.
The moral of the story is a president having both the willingness and capability to defy an unpopular Supreme Court order. The president, Congress, the states, and the public did not follow a Court decision with which they disagreed. Would that be the case with Brown?
Brown v. Board: A Test of Principle
The Court delegated most enforcement power to local district courts, which would have to ensure that school districts “ma[de] a prompt and reasonable start toward full compliance” and consider whether the “action[s] of school authorities constituted [a] good faith implementation” of the ruling. However, the substance of Brown faced outright defiance. Members of Congress commended Southern states for resisting forced integration “by any lawful means.”
In Little Rock, Arkansas, the school board announced an integration plan that included admitting a small group of screened Black students to Central High — the “Little Rock Nine.” Simultaneously, Arkansas had approved a state constitutional amendment “commanding [the state] to oppose desegregation decisions.” The White Citizens’ Council began organizing chapters across the South, making arguments reminiscent of nullification. They convinced Governor Orval Faubus of Arkansas it was politically viable to stop enforcement via nullification because he was immune from federal court orders. The federal court issued an injunction, reasoning that the state court order “paralyze[s] the decree of this court entered under Federal law, which is supreme under the provisions of Article 6 of the Constitution.”
The evening before school would begin, Governor Faubus announced he would send the National Guard to prevent integration in defiance of the federal court order. After days of violence that prevented the nine students from entering, President Dwight Eisenhower stepped in, holding a meeting with Governor Faubus in which he ordered him to stand down. Governor Faubus acquiesced, but the damage from his seditious rhetoric had already been done: a mob of over a thousand had assembled outside the school, sowing chaos on the Black students’ first day (3).
President Eisenhower was now in the same position President Jackson had been in over a century earlier. He had a constitutional duty to “take Care that the Laws be faithfully executed.” Was he thus compelled to send federal troops to enforce a federal court order? The nation had fought a civil war over the question of whether federal law was supreme over state law. Accordingly, he invoked the Insurrection Act and activated federal troops to enforce the order, sending the 101st Airborne Division of the Army and federalizing the Arkansas National Guard. His message to the nation stood in stark contrast to Jackson’s: “The ... orders of a United States District Court ... cannot be flouted with impunity.”
The next year, when Governor Faubus sought more delay in the Court, U.S. Solicitor General J. Lee Rankin argued that “this country cannot exist without a recognition of ... when [the Court] speaks on a legal matter, it’s the law.” The Court agreed in its subsequent opinion, citing Article VI’s Supremacy Clause and the “indispensable feature” of our system since Marbury to “say what the law is,” and have that decision be respected.
As time went on, public opinion began to shift, in part because of the president’s decision to uphold the Court’s legitimacy. Only a couple miles away from Central High sits the grave of Cherokee Chief Ross’s wife. “Although the distance between the grave and the school is small, the nation had come a long way in the time between the two decisions that they symbolize.”
The Public’s Perception and Trust
Supreme Court Justice Robert Jackson famously quipped, “We are not final because we are infallible, but we are infallible only because we are final.” The Court’s soundness rests on the recognition that its decisions are the ultimate word. Yet, as retired Justice Stephen Breyer wrote, “Words on paper ... no matter how wise, are not sufficient to preserve a nation.” The legitimacy of the Court is derived from the citizenry’s trust and voluntary compliance.
The Court’s prestige as a structured institution depends on the public’s perception of its legitimacy — something that can be lost at any time. The current Supreme Court has repeatedly demonstrated its commitment to controversial, text-oriented interpretive methods. However, what is troubling is its selective application of these principles. Some recent examples include: Trump v. Anderson (holding that states cannot enforce the Disqualification Clause of the Fourteenth Amendment against candidates for federal office despite the plain text of Section Three); Fischer v. United States (rejecting the plain reading of 18 U. S. C. §1512(c)(2), a catch-all for conduct that obstructs an official proceeding when the perpetrator has a corrupt intent, and instead opting for an interpretation that renders the clause superfluous); and Trump v. United States (creating the doctrine of presidential criminal immunity out of whole cloth, even though the Impeachment Judgment Clause of the Constitution explicitly contemplates the prosecutions of former presidents for crimes involving official acts). These examples stand in stark contrast to the Court’s professed method of constitutional interpretation, laid out in Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association., Inc. v. Bruen: “[P]ost ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.”
Thus, it is no surprise that the Court’s approval rating is, according to a recent Gallup poll, near an all-time low. Prominent constitutional scholars have even proposed expanding the Court or imposing term limits to protect its legitimacy. The Court’s inconsistency in upholding horizontal stare decisis — the principle that respecting past decisions maintains stability in the law — could have serious implications for the entire judiciary. All courts, state and federal, are bound to enforce Supreme Court rulings under vertical stare decisis, a doctrine rooted in Article III of the Constitution. But a Court that disregards its own precedents and applies a different interpretive principle with each case sets a troubling example for lower courts. If the Supreme Court does not follow its own rulings, why should anyone else? The Court ought to tread carefully as it considers which past precedents it deems sufficiently “egregious” to overturn next. Whether its current trajectory will lead to a more severe legitimacy crisis — as seen at times in our nation’s history — remains to be seen.
In Shakespeare’s Henry IV, Glendower declares that he “can call spirits from the vastly deep.” But, Hotspur responds, “Why, so can I, or so can any man, but will they come when you do call for them?” To ensure our Constitution and Bill of Rights does not become what its Framers called a “parchment guarantee,” we must do everything in our power to ensure that they do.
1. Akhil Amar, The Words that Made Us (2021).
2. Stephen Breyer, “Making Our Democracy Work, A Judge’s View” (2010).
3. David Nichols, “A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Revolution” (2007).