Private: "Federal Courts Have No Army Or Navy"

column by John Elias, Blog Editor
The political branches have increasingly taken aim at the traditional guardian of minority rights, the judiciary. The House of Representatives has twice this year passed legislation designed to strip federal courts of jurisdiction over cases involving controversial issues. The Pledge Protection Act would prevent federal courts from hearing cases involving Establishment Clause challenges to the Pledge of Allegiance; the Marriage Protection Act would bar challenges to the Defense of Marriage Act. Congress does have some power to limit the jurisdiction of federal courts--for example, it can requiring that they hear only cases involving a minimum amount of damage--but these acts' particulars raise serious constitutional questions. Their effect could be to amend the Constitution by mere majority vote of Congress. (ACSBlog has more on the PPA and the MPA here and here.)
Because its orders are not self-executing, the judiciary relies on the consent of other branches in order to assert itself. And popular vigilance is the only way to make those branches cooperate when they're not inclined to. Alexander Hamilton realized this over two hundred years ago when composing Federalist 78: "the judiciary is beyond comparison the weakest of the three departments of power . . . it can never attack with success either of the other two. . . [it] has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment." These same factors give judiciary a special place because it is the "least dangerous" branch.
Hamilton concludes that "all possible care is requisite to enable it to defend itself" against attacks from other branches. In a speech to the Christian Coalition, Rep. John Hostettler gave the warning contemporay salience. "Congress controls the federal judiciary," Hostettler asserted. "Congress can say the federal courts have limited power to enforce their decision. . . Federal courts have no army or navy. . . The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."
When he disagreed with the Supreme Court's decision to let the Cherokee keep their land in the face of intrusion by gold speculators, President Jackson is said to have uttered, "John Marshall has made his decision, let him enforce it." The Trail of Tears followed, as the Cherokee were forced to migrate to Oklahoma from their homes in northern Georgia. In his speech to this year's ACS national convention (at 10:00), Justice Breyer contrasted this outcome with Cooper v. Aaron. To enforce the controversial decision, President Eisenhower sent the national guard to excort black children to their Little Rock high school. Instead of tears, the President helped catalyze the civil rights movement.
(Thanks to up2date, whose post at DailyKos inspired this one.)