While the importance and divisiveness of Supreme Court decisions seems to have grown over the last few decades, the highest court in the land has seldom been entirely free of controversy, nor have its ruling been universally followed. Some of these acts of noncompliance have become famous in American history, but others have been relegated to footnotes in judicial history and it is in fact exceedingly difficult to find any comprehensive collection or treatment of all such instances. I’ve endeavored to gather all I could find and previously knew of here, in chronological order, to at least make some effort towards rectifying this curious absence.
One note on my criteria: in compiling, I’ve restricted myself to only instances where a decision was issued for a case that the parties involved or closely related parties refused to follow immediately or closely afterward. This gets to the heart of the kind of direct disobedience that I intend to dissect as well as avoids certain complications inherent in the American legal system—it is an accepted practice that juridical precedent may be challenged and overturned (though that does not necessarily shield those who challenge it from legal consequences if they lose) and it is also the nature of law that decisions are specific to the context in which they are decided and that many legislative actions that might appear to disobey the Supreme Court (such as continued efforts at firearm control or past efforts to restrict abortion) are in fact probing the specific contours and limits of a precedent to discover what exactly is and is not permissible.
McCulloch v. Maryland (1819) – In one of those odd cases that is not major enough to make a short list of important decisions to know offhand, but not quite minor enough to be forgotten in a high school United States History course, Chief Justice John Marshall ruled that Congress did have the power to grant corporate charters, and that the creation of the Second Bank of the United States had been constitutional and legal. Yet it is not often explained that the inciting incident behind the original suit was anger at the conduct of the Bank and some of its officials during the Panic of 1819 (the nation’s first serious economic downturn) as well as its subsequent bailout at taxpayer expense. The state of Maryland had levied a punitive tax on its branch of the Bank, and it was the Bank’s refusal to pay that initiated the suit. The second half of Marshall’s decision declared that the power to tax was the power to destroy, and if state legislatures did not have the power to affect the existence of a creation of the Federal government, they did not have the power to tax it, either. As it turned out, Ohio had levied an even more severe tax on the two Bank branches within its borders and pursued its collection by force six months after McCulloch v. Maryland. That action resulted in its own case, Osborn v. Bank of the United States, which Marshall decided similarly in 1824—but the Court quietly decided not to push too far against public sentiment, and the decision was not ultimately enforced.
Worcester v. Georgia (1832) – Probably the most well-known instance of judicial noncompliance on this list is actually very different from its popular memory and, often, actual instruction in schools. As the Georgia state legislature began expelling Native Americans from their land and forcing their migration westward with the backing of Andre Jackson’s administration, Marshall actually actively avoided hearing any cases on “Indian Removal” itself, likely because he was worried about the enforcement of an unpopular decision that the Chief Executive would also oppose. It was only when Samuel Worcester and Elizur Butler, two white missionaries who had been arrested and held in appalling conditions for violating a Georgia law banning any white man from living on Native American land without a state permit, brought suit that the issue officially stood before the court. A 5-1 majority decided that Georgia indeed had no grounds to conduct diplomacy or pass legislation concerning Native Americans as that was the exclusive preserve of the Federal government per the Constitution, and that Worcester and Butler must be released. It was then that Jackson is often said to have proclaimed “John Marshall has made his decision; now let him enforce it!” It is almost certain that he never did any such thing, as this quote first appeared in a work by the abolitionist Horace Greeley decades later—but that does not mean it doesn’t accurately capture Jackson’s sentiment. He did write to a fellow planter in Tennessee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” Some have argued (logically) that Jackson should have been inherently responsible for enforcing the decision in his role as head of the executive branch and in accord with his oath to uphold the laws of the United States, yet norm and precedent have dictated that only a direct order or request issued by the Supreme Court compels the Executive to its assistance. The Marshall court did no such thing, once again opting to let their word go unenforced so as to avoid a direct confrontation that might cripple or even destroy the court moving forward.
Dred Scott v. Sanford (1857) – In one of the worst-argued Supreme Court decisions in history, Chief Justice Roger B. Taney infamously declared that not only did black people could never be citizens and thus did not have “any rights which the white man was bound to respect” but that the Missouri Compromise had been unconstitutional as Congress did not have the power to legislate the issue of slavery in the nation’s territories and implied that perhaps no state could legislate against slavery even within its own borders. While this decision was certainly followed in the narrow sense that Dred Scott and his wife remained enslaved for the time being, in a broader sense it was widely unenforced—and it is difficult to see how it could have been. Enforcement would have required some kind of titanic effort to force all Northern states that granted free black people citizenship to reverse those laws and deprive them of all rights. It is doubtful even a willing and energetic Executive Branch could have done so short of civil war given the resources of the time.
Ex parte Merryman (1861) – As Southern states seceded in 1860 and the nation was thrown into both constitutional and existential crisis, the incoming administration of President Abraham Lincoln had to act quickly and decisively. Faced with the prospect of a capital city surrounded by the enemy and insurgent activity that defied conventional rules of law enforcement, Lincoln unilaterally suspended the right of habeas corpus and held certain individuals suspected of sabotage and treason under arrest without formal charges or trial. One such prisoner, John Merryman of Baltimore, challenged what appeared to be clear executive overreach. While the Constitution does allow that habeas corpus may be suspended in times just such as those, that passage is located in Article I, that dealing with the powers of Congress (though it never explicitly declares which branch of government might suspend it). Chief Justice Taney agreed, and wrote a decision known as Ex parte Merryman to that effect. While some have believed this decision was written under Taney’s authority as a Federal circuit judge (all Supreme Court Justices were also Federal Circuit Court judges until 1891), historian Jonathan White has persuasively argued that Taney explicitly issued it as a Supreme Court Justice “in chambers,” and that it therefore did have effect as a Supreme Court decision. It did not do John Merryman any favors, however; Lincoln countered that whoever might be said to properly hold the power of suspending habeas corpus, Congress had not been in session at the time and the national emergency had required swift action to preserve the country. He thus declined to follow Taney’s decision, and while Merryman was eventually released, Lincoln’s immediate refusal had served its purpose, buying the government the time it really wanted to secure the capital and render Merryman’s imprisonment largely superfluous.
Brown v. Board of Education of Topeka (1954 & 1955) – Easily the most famous court case here, what is popularly known as Brown v. Board has become synonymous with civil rights, often boiled down to a paraphrase of the key words of Chief Justice Earl Warren’s decision: “separate but equal is inherently unequal.” Yet most do not know just how bitterly fought the enforcement of this decision was. The original case, decided in 1954, had made no provision or recommendation for either the method or timetable of desegregation. Unsurprisingly, most public education systems across the South ignored it and made no move to integrate. Only in a second decision a year later compelled by this intransigence (Brown v. Board of Education of Topeka II) would the Court issue an official order directing that desegregation be pursued “with all deliberate speed.” Even this was a little vague, and schools continued to drag their feet for decades, precipitating high profile clashes when Presidents Eisenhower and Kennedy used Federal troops to protect black students attempting to attend public colleges—though these famous incidents are often not directly connected back to a refusal to follow Brown v. Board. In fact, the last public school district to integrate by court order would only do so in 2016, over half a century after the original decisions.
Carson v. Makin (2022) – Unsurprisingly, refusal to comply with the opinions of the Supreme Court continues up to the present day. While the first and second presidential administrations of Donald Trump have been notorious for doing all they can to avoid following rulings they do not like, resistance has also come from the political left. In 2021, an amendment to Maine’s Human Rights Act required that religious private schools could not receive state funding through programs providing tuition vouchers for students that live in towns without public school districts. While this law was itself intended to preserve the Establishment Clause of the First Amendment and maintain the separation of Church and State, the Supreme Court disagreed. In their 2022 decision Carson v. Makin, the six conservative justices on the court ruled that, in accordance with previous cases Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), denying families tuition assistance if they wanted to send their children to religious schools violated the Free Exercise clause of the First Amendment (notwithstanding that such an act only very dubiously falls under the definition of freely exercising one’s religion). Maine’s Attorney General immediately refused to comply, issuing a statement that not only reiterated the law’s compliance with a reasonable interpretation of the First Amendment but pointed out that many of the religious schools in question pursued explicit race, gender, and sexuality discrimination in their admissions policies and lessons and thus should not be supported by government funds. It remains to be seen how this, and the nation’s general battle over just what “religious freedom” means in a public context, will play out in the coming years.