When a state defies the Court, who governs?

The New York Post reports that a Hawaii judge has not merely disagreed with the Supreme Court's conservative majority — he has declared that his state may defy it. The specific quarrel is over the equal protection clause and what the Roberts Court has called a 'colorblind' interpretation of it: the view that the Fourteenth Amendment forbids government from classifying citizens by race even when the purpose of that classification is remedial. The judge argues, with some historical force, that the amendment was written in the immediate aftermath of slavery precisely to protect the people whom slavery had degraded, and that pretending the text carries no racial context is itself a distortion of original meaning.

I find myself pulled in two directions, and I will not pretend otherwise. On the first question — the meaning of the amendment — the judge is not wrong to observe that an amendment born of a specific moral catastrophe cannot be read as though that catastrophe had no bearing on its words. The Declaration I drafted announced that all persons are created equal; the Reconstruction amendments were the belated and incomplete attempt to make that declaration operative for people who had been violently excluded from it. Any interpretive method that ignores that history in the name of 'colorblindness' is, at minimum, historically thin.

Yet on the second question — whether a state court may simply announce that it will not comply with the Supreme Court's rulings — I am far less comfortable, and I say this as a man who believed deeply in the rights of states to resist federal overreach. The remedy for a bad constitutional ruling is not unilateral defiance by a single judge in a single state. That path, followed without discipline, dissolves the very idea of a common law. It was precisely the logic of nullification that I saw threaten the Republic in my own time, and I never endorsed it cleanly, whatever my admirers in South Carolina later claimed on my behalf.

The citizen's liberty depends on a predictable, common framework of law. When the Court errs — and courts do err, sometimes gravely and for generations — the remedy lies in the political process: in constitutional amendment, in the appointment of better judges, in legislation that tests the boundaries of judicial doctrine. These are slow remedies, and I confess they are cold comfort to people whose rights are being denied today. But a republic that survives only when every official agrees with every ruling is not a republic at all; it is a collection of competing sovereignties waiting for a strong man to consolidate them.

What I would urge the Hawaiian judge to consider is this: the power to defy a court ruling, once asserted, does not remain the property of those who assert it for good reasons. It becomes available to every future official who believes — rightly or wrongly — that the Court has erred. The officer who defies the Court to protect equal rights today licenses the officer who will defy it tomorrow to destroy them. Liberty is not well served by that precedent.

The deeper lesson here — and I mark this as my own inference, not a fact reported in the story — is that the Court's credibility is a public asset, and the present majority has been spending it rapidly. When a court issues rulings that a substantial portion of the citizenry regards as historically illiterate, it invites exactly this kind of resistance. The cure for a Court that has lost the public's confidence is not defiance; it is the patient, difficult, democratic work of restoring it. An educated citizenry, engaged in that work, is the only sovereign I have ever trusted.