Can Trump defy the courts?
The lesson from Andrew Jackson's era
On March 3, 1832, Chief Justice John Marshall spoke for all but one of his fellow justices when he declared that the state of Georgia had no right to pass laws aimed at forcing Cherokee Indians off their lands.
“The Cherokee nation,” he wrote, “is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.” The federal government had signed treaties with the Cherokees and enacted laws regulating relations with them. “These laws throw a shield over the Cherokee Indians. They guaranteed to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. But, by the enactments of the State of Georgia, this shield is broken in pieces -- the infant institutions of the Cherokees are abolished, and their laws annulled.”
Georgia had to back off, the Supreme Court ruled.
This was the famous judgment in Worcester v. Georgia that supposedly prompted President Andrew Jackson to say: “John Marshall has made his decision: now let him enforce it!”
That statement — akin to what Stalin reportedly said about the military power of the Vatican: “The Pope? How many divisions has he got?” — is too pithy and pungent to be forgotten because of the many doubts about whether Jackson actually said it.
The quote was first described in a book by Horace Greeley 32 years after the John Marshall opinion was issued. “While the remark does represent Jackson’s views,” the New Yale Book of Quotations concluded, “he probably never spoke those words.”
Regardless, that statement is the canonical assertion of judicial powerlessness that today hangs over the dispute about judges who are seeking to put the brakes on Trumpian power grabs.
Pushback
The courts are getting a ton of pushback from MAGA world. “Judges aren’t allowed to control the executive’s legitimate power,” Vice President JD Vance posted on X.
What happens when a president with a workforce of millions and a budget of trillions refuses to obey the order of a judge, who has no troops to command and has to rely on the Justice Department’s Marshals Service to carry out his injunctions?
The Trump administration is appealing some of the court orders temporarily halting DOGE’s efforts to slash spending, halt payments and encourage federal workers to quit, but it’s not clear whether President Donald Trump will refuse to bend to the judges’ rulings if he loses those appeals.
The Washington Post quoted legal analyst Steve Vladeck as saying “a president hasn’t flagrantly ignored a court ruling since the Civil War, when President Abraham Lincoln defied a Supreme Court justice who forbade the government from detaining people without cause.”
With the Republicans who control Congress lacking the spine to seriously challenge Trump on key issues, it is only the judicial branch that could counter the biggest expansion of presidential power in a century.
For that reason, it’s crucial to explore the background of the Worcester v. Georgia case, and at the way it was ultimately resolved. And that takes us to Andrew Jackson.
Andrew Jackson
Jackson was a successful lawyer and a judge, but he made his name as a war hero. He led troops who defeated the Creek Indians, seized Florida and defeated the British in the Battle of New Orleans, the final victory in the War of 1812.
When he ran for president in 1824, he received the most electoral votes, but fell short of a majority. Under the constitution, that gave the House of Representatives the duty to choose the president. Speaker Henry Clay backed John Quincy Adams for president, and Adams later chose Clay as his Secretary of State, in what Jackson’s team thought was a “corrupt bargain.”
The sequel came four years later, in an election that eerily prefigured the matchup in 2024. President Adams campaigned in 1828 on a program of economic improvements to the young nation while Jackson’s side sought to make a more emotional connection to voters by professing to fight the “elites.” Jackson won an overwhelming victory.
Never apologized, never forgave
As Daniel Walker Howe wrote in his Pulitzer Prize-winning history, “What Hath God Wrought,” while Jackson “invoked a democratic ideology, the new president had profoundly authoritarian instincts. Tall, ramrod straight, with piercing eyes and an air of command, the hero of New Orleans was not a man to be crossed…Quick to sense a criticism or slight, he never apologized, never forgave, and never shrank from violence. His towering rages became notorious…”
“A large segment of the American electorate shared Jackson’s belief in the legitimacy of private violence, and the assertion of male honor, his trust in natural rather than acquired abilities, and his impatience with limitations on one’s own will,” Howe noted.
Jackson’s commitment to telling the truth was at best casual. He found willing enablers to back up his false claims of presidential backing for his invasion of Florida and of a marriage to the already married Rachel Robards before they began living together. In fact, they were married several years later, after a divorce from her first husband was obtained. Early in Jackson’s presidential term, “personal loyalty to the president meant everything,” Howe observed. Jackson also benefited from the support of quite a few journalists, in an era when a partisan press was the norm.
Jackson was the seventh president, but he was the first to engineer a major shakeup in the ranks of federal workers. He removed about 10% of all federal workers, including 432 postmasters, in his first year in office, Howe wrote. “Over the long term the spoils system diminished both the competence and the prestige of public service.”
‘Indian Removal’
The main policy aim of Jackson’s presidency was known as “Indian Removal,” making Jackson an ally of Georgia and other states that coveted tribal lands. The president halted payments owed to the Cherokees and ignored federal laws that protected their rights.
When the Cherokees asked the Supreme Court to enforce their rights against Georgia, the justices turned them down. But Georgia also moved against white missionaries who lived with the Cherokees, seeing them as potential barriers to the removal of the Indians. The state imprisoned Samuel Worcester and another missionary, sentencing them to four years of hard labor. It was their appeal that got the Supreme Court to act, producing the landmark ruling written by John Marshall.
“Jacksonian democracy,” Howe concluded, “was about the extension of white supremacy across the North American continent.” And so, Jackson, along with Georgia and other states, were not about to back off because of a court ruling. “The decision of the Supreme court has fell still born,” Jackson wrote in a letter in April, 1832, “and they find that it cannot coerce Georgia to yield to its mandate.” The standoff continued.
Compromise
But in December that year, Vice President-elect Martin Van Buren negotiated a face-saving compromise. As Howe described it, the missionaries agreed not to ask the Supreme Court to enforce its ruling but accepted pardons from Georgia (“The Supreme Court avoided the public embarrassment of issuing a writ that proved unenforceable.”). The state repealed the law which targeted missionaries. And President Jackson treated the Supreme Court to a convivial White House dinner in January, 1833.
But there was one party to the controversy that didn’t get any concessions: the Cherokees. Ultimately, they were forced out of Georgia, with whites grabbing their lands. Howe quotes a popular song of the time:
All I want in this creation
Is a pretty little wife and a big plantation
Away up yonder in the Cherokee nation
Thousands of Cherokees died on the “Trail of Tears” march to Oklahoma.
The takeaway from the story of Worcester v. Georgia suggests that judges are overmatched in attempting to counter a defiant president, particularly if he has strong support among voters.
The courts can pick their spots and reverse select presidential actions. But ultimately they have to rely on the backing of the public, questions from the media and intervention by leading figures in Congress to have a strong likelihood that their rulings will be enforced.
When the Supreme Court ruled in 1974 that President Richard M. Nixon had to turn over the White House tapes, he only had a 24% approval rating in the Gallup poll.
When the Court ruled against President Harry Truman’s seizure of the steel industry in 1952, his approval rating was also hovering in the mid-20s.
While Trump’s rating is low for a newly inaugurated president — a recent CBS News/YouGov poll put it at 53% — it’s still more than twice as high as that of either Nixon or Truman at their lowest points.
The evidence suggests that the courts will only be a major obstacle for Trump if the consequences of his policies prove deeply unpopular with the American people — and that could well happen.
A pattern of defying the courts could cost Trump support among voters. Combine that with potential anger over the loss of government services, as a result of Elon Musk swinging the DOGE axe, and the president’s approval rating could nosedive. The battle that is being fought in the courts right now is also going to take place on the field of politics.
Another deeply researched, insightful piece. We always knew that Trump favored Andrew F. Jackson, and now we have a better understanding of why. My favorite sentence: “Regardless, that statement is the canonical assertion of judicial powerlessness that today hangs over the dispute about judges who are seeking to put the brakes on Trumpian power grabs.” I love “canonical assertion of judicial powerlessness.”
Rich -- Thanks for reminding us it's all happened before though this president is not Andrew Jackson, for which we can perhaps be grateful, nor Abraham Lincoln, for which we surely cannot.