Keith Harper: “The Importance of Judicial Contempt Proceedings in a Trump Era”

From Just Security, here.

An excerpt:

This brings us back to the peculiarities of President Trump and his administration.  The United States has a long history, going back to Marbury v. Madison, of courts deciding what the law is and enforcing lawful decisions.  And other than the occasional aberration such as President Andrew Jackson’s refusal to enforce the decision of Chief Justice John Marshall in the Cherokee Nation cases in the early 1830s, judicial decrees have reigned supreme, and through their regular and systematic enforcement established this as a nation governed by the rule of law. That system of rules and norms is a critical stabilizing force for sound democratic governance.


At What Point Does Indian Country Boycott the Supreme Court?

Seriously. Georgia did it in the Cherokee cases — they raised their sovereign immunity defense and literally filed no briefs and made no appearance at oral argument. [Of course, that wouldn’t happen now if a party refused to appear — the Court would appoint counsel to argue the case.]

It would be a radical move, and must be strategic. My guess is the best (and perhaps only) time to try it is when the Supreme Court accepts jurisdiction over a case entirely under its common law jurisdiction. An example would be the Court’s review of tribal court jurisdiction over nonmembers, reviewable not through authorization from Congress but solely under the Court’s decision in National Farmers Union, which created both a federal right and a federal remedy. Federal courts could still properly review tribal court jurisdiction when a party is seeking to enforce a tribal court order in federal court.

Or maybe the boycott should occur where the Court is reviewing treaty language, as Rob Porter and others have suggested.

The main problem here is that tribal interests want to win these cases, and, well, they won’t if they don’t show up. So we’ll keep following the Supreme Court, which will issue some orders later today that may affect Indian Country.

Justice Breyer on the Cherokee Cases

Justice Breyer’s new book on constitutional law, Making Our Democracy Work, includes an entire chapter on the Cherokee cases. Justice Breyer long has invoked the plight of the Cherokees in talks he has given at various law schools and elsewhere.

Likely, the story of Worcester and the Cherokees is well known by the readers of this blog, and Justice Breyer’s rendition is largely accurate and respectful. He is certainly sympathetic to the Cherokees. ButJustice Breyer uses the Cherokee cases within the framework of his overall thesis in Making Our Democracy Work — the Cherokee cases serve as a warning to the modern Court about the limits of the Court’s power.

Readers of the book familiar with federal Indian law might scratch their heads wondering why the Cherokee cases are used in this way. If anything, federal Indian law post-1832 mostly has been used as a cudgel against the constitutional and property rights of Indian Country.

Continue reading

Justice Breyer on Cherokee Cases and the Supreme Court’s History

From the Yale Daily News via How Appealing:

Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.

Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”

Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.

Thirty-five years later, Levin said he could sum up Breyer in a single word.

“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”

The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.

Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.

“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.

Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.

“Even Jackson figured out that was not such a good idea,” Breyer said. Continue reading