Lincoln Defied the Supreme Court. Blue States Should Too.

Defying the Highest Court has substantial precedent.

Win McNamee/Getty Images

In April 1832, Andrew Jackson wrote to a friend that the Supreme Court’s ruling in Worcester v. Georgia had fallen “still born” because the Court could not “coerce Georgia to yield to its mandate.”¹ The quote commonly attributed to Jackson (”John Marshall has made his decision; now let him enforce it”) is almost certainly apocryphal, but the sentiment was real.² Georgia ignored the ruling. Jackson refused to act. The Cherokee Nation walked the Trail of Tears.

We remember this story as a cautionary tale about executive lawlessness. But buried inside it lies a constitutional question that blue state leaders will soon need to answer: At what point does a court so thoroughly abandon its constitutional function that compliance with its rulings becomes collaboration with its corruption?

The conventional answer to this question comes from Cooper v. Aaron, the 1958 case where the Supreme Court declared that its interpretations of the Constitution are “the supreme law of the land.”³ Every state official who takes an oath to support the Constitution must therefore obey the Court’s rulings, even when those rulings are wrong. This doctrine, which legal scholars call judicial supremacy, treats Court decisions as binding not just on the parties to a case but on everyone, everywhere, forever, until the Court itself changes its mind.

Cooper arose from the desegregation crisis in Little Rock, Arkansas, where Governor Orval Faubus deployed the National Guard to prevent Black students from entering Central High School. The Court’s assertion of supremacy served a morally urgent purpose: forcing state officials to stop nullifying Brown v. Board of Education through defiance and delay. Nine justices signed the opinion, an unprecedented show of unanimity designed to signal that resistance was futile.

Cooper’s doctrine has been accepted as settled constitutional law for nearly seven decades. But settled is not the same as correct. James Madison, the principal architect of the Constitution, explicitly rejected the claim that the Supreme Court holds exclusive authority to determine constitutional meaning. In his Report of 1800, Madison argued that state governments retain authority to judge whether the constitutional compact has been dangerously violated by the federal government.⁴ That authority, Madison wrote, must extend to violations by the judiciary as well as by the executive or the legislature.⁴

Abraham Lincoln offered a similar analysis when confronting Dred Scott. He accepted that the Court’s ruling bound the parties to that case. Dred Scott himself remained enslaved. But Lincoln refused to treat the Court’s constitutional reasoning as binding on the political branches. “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln warned in his First Inaugural Address, “the people will have ceased to be their own rulers.”⁵

Lincoln acted on this position. His administration issued passports to Black Americans and, through Attorney General Edward Bates’ November 1862 opinion declaring free Black people citizens of the United States, repudiated Dred Scott’s central holding through executive action.⁶ The Act to Secure Freedom to All Persons within the Territories of the United States, signed by Lincoln on June 19, 1862, flatly prohibited slavery in any territory, directly contradicting the Court’s ruling. As historian Paul Finkelman wrote, “With one sentence, Congress undid a key aspect of the holding in Dred Scott.”⁷ Republicans treated Dred Scott as what it was: a corrupt ruling by partisan justices who had abandoned constitutional interpretation for political advocacy. They complied with the judgment in the specific case while refusing to accept its reasoning as controlling precedent.

So when can a state tell the Court no? Lincoln articulated the conditions in his 1857 speech on Dred Scott: a decision deserves acquiescence as settled doctrine only when it has been “made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true.”⁸

Every clause of that standard indicts the current Supreme Court’s most consequential rulings.

Dobbs v. Jackson Women’s Health Organization overturned fifty years of precedent in a 6-3 ruling, with five justices voting to abandon Roe entirely, three of those five appointed by a president who lost the popular vote and confirmed through extraordinary procedural manipulation.⁹ The decision’s historical analysis has been demolished by actual historians. The American Historical Association and Organization of American Historians issued a joint statement declaring the Court “adopted a flawed interpretation of abortion criminalization” and ignored “the long legal tradition of tolerating termination of pregnancy before quickening.”¹⁰ Legal historian Aaron Tang documented that as many as twenty-one states, not the nine Alito claimed, permitted pre-quickening abortion.¹¹ The ruling defied legal public expectation; polls consistently showed that approximately two-thirds of Americans opposed overturning Roe.¹²

New York State Rifle and Pistol Association v. Bruen invented a historical test for gun regulations that historian Saul Cornell called “one of the most intellectually dishonest and poorly argued decisions in American judicial history,” built on the kind of law office history that Justice Breyer’s dissent explicitly condemned.¹³ The 6-3 ruling created constitutional constraints on state gun laws that no one believed existed before 2010, when McDonald v. City of Chicago first applied the Second Amendment to the states in a decision that itself broke sharply from two centuries of settled constitutional understanding.¹⁴

Trump v. United States gave the Supreme Court the power to decide, case by case, which presidential actions are immune from prosecution. Given this Court’s track record, we know exactly how those decisions will go. A Republican president who orders the assassination of a political rival commits an official act. A Democratic president who sends aid to Ukraine commits treason. The doctrine has no basis in constitutional text, no grounding in historical practice, and no support in precedent.¹⁵ The decision was 6-3, with all six Republican-appointed justices in the majority and all three Democratic-appointed justices in dissent. Three of them sit on stolen seats.

These rulings share a common characteristic: they expand Republican power and contract Democratic power, consistently, predictably, across every domain. When the Court rules on voting rights, the result restricts ballot access in ways that benefit Republicans.¹⁶ When the Court rules on campaign finance, the result allows more corporate money to flow to Republican candidates.¹⁷ When the Court rules on regulatory authority, the result strips power from agencies that enforce environmental, labor, and consumer protections that Republican donors oppose.¹⁸ When the Court rules on presidential authority, the result expands executive power when Republicans hold the White House and contracts it when Democrats do.

The pattern extends to the Court’s procedural choices. When the Trump administration seeks emergency relief, the Court grants it. When the Biden administration sought similar relief, the Court denied it.¹⁹ Justice Sotomayor captured this asymmetry in her July 2025 dissent: “Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”¹⁹

Public confidence in the Court has collapsed accordingly. Annenberg Public Policy Center surveys show that 56 percent of Americans now distrust the Court, with only 44 percent expressing trust, the lowest level since tracking began in 2005.¹² The partisan gap has doubled since Dobbs; Republicans trust the Court while Democrats and independents do not.¹² Academic research published in Science Advances confirms that Dobbs polarized public views of the Court along partisan lines “for the first time in decades.”²⁰

The Court’s defenders argue that these trends reflect nothing more than disappointment with particular rulings. Legitimacy, they claim, should not depend on whether people like the outcomes. But everyone watching can see what is happening. The conservative majority takes money from oligarchs, issues rulings that make corruption legal, and deploys the law with a single goal: permanent Republican rule. These justices are dismantling the Constitution they swore to protect.

David Sloss, a constitutional law professor at Santa Clara University, has made the case for state defiance in response to Bruen. Sloss argues that the ruling violates the Tenth Amendment, which reserves to the states powers not delegated to the federal government.²¹ The Supreme Court held in United States v. Lopez that the power to enact local gun regulations is not delegated to the federal government.²² Therefore, Sloss argues, state gun laws fall within the sphere of reserved state authority, and federal interference, including interference by the Supreme Court, exceeds constitutional limits.²¹

The same logic extends to other domains. Blue states possess independent authority to protect their residents in areas where the federal government has no legitimate constitutional claim. When the Supreme Court issues rulings that exceed constitutional boundaries, states retain the Madisonian authority to judge those violations and act accordingly.

What would defiance look like in practice? Republicans have already shown us. The Supreme Court ruled in January 2024 that federal agents could remove Texas’s border razor wire. Governor Abbott ignored the ruling and installed more. Nothing happened to him. No arrests, no sanctions, no consequences. Red states passed constitutional carry laws that treat federal gun regulations as suggestions. Blue states can play the same game. State attorneys general can prosecute federal agents under state anti-corruption statutes, where presidential pardons hold no power. State legislators can pass campaign finance laws that ignore Citizens United within state borders. Governors can direct state law enforcement to arrest federal agents who commit crimes in their jurisdictions.

This sounds radical because we have been trained to treat Court rulings as sacred. But the sacredness of Court rulings depends on the Court maintaining its role as a neutral arbiter of constitutional meaning. A Court that has abandoned neutrality for partisanship has forfeited the deference that neutrality commands.

Throughout American history, states have defied federal authority to preserve white supremacy. They kept people enslaved, protected lynch mobs, enforced segregation, and marched Native Americans to their deaths. Blue states would be defending free speech, the right to privacy, protection from unwarranted search and seizure, reproductive rights, and democracy itself. We have the moral high ground. We should use every tool available.

Lincoln understood that the Constitution is not self-executing. Its meaning emerges through struggle among competing interpreters, each with legitimate claims to constitutional authority. The Supreme Court plays an important role in that struggle, but not the only role, and not an unlimited one. “The candid citizen must confess,” Lincoln said, “that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers.”⁵

We have reached that point. Blue states must defy the Court. The constitutional tradition of departmentalism provides the theoretical foundation. The precedent of Lincoln provides the historical model. The corruption of the current Court provides the justification.

Jackson’s Georgia ignored Worcester v. Georgia and the Cherokee walked the Trail of Tears. That history is shameful. But the lesson of that history is not that states must always obey the Court. The lesson is that defiance can be wielded for good or for evil, for justice or for oppression. The morality of defiance depends on what it defends.

Blue states are not seeking to preserve slavery or enforce segregation. They are seeking to protect free speech, the right to privacy, protection from unwarranted search and seizure, reproductive rights, and democracy itself. If the Supreme Court will not protect these principles, and if the Supreme Court has become an obstacle to these principles, then the states must protect them despite the Court.

Justice matters more than the justices.

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References

1. Jackson, A. (1832, April 7). Letter to John Coffee. In J. Bassett (Ed.), The correspondence of Andrew Jackson (Vol. 4, p. 430). Carnegie Institute.

2. Federal Judicial Center. (n.d.). Executive enforcement of judicial orders. https://www.fjc.gov/history/administration/executive-enforcement-judicial-orders

3. Cooper v. Aaron, 358 U.S. 1, 18 (1958).

4. Madison, J. (1800). The report of 1800. National Archives Founders Online. https://founders.archives.gov/documents/Madison/01-17-02-0202

5. Lincoln, A. (1861, March 4). First inaugural address. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/19th_century/lincoln1.asp

6. Bates, E. (1862, November 29). Opinion of Attorney General Bates on citizenship. U.S. Government Printing Office. https://www.gilderlehrman.org/collection/glc05775

7. Finkelman, P. (2018). The revolutionary summer of 1862: How Congress abolished slavery and created a modern America. Prologue Magazine, 49(4). National Archives. https://www.archives.gov/publications/prologue/2017/winter/summer-of-1862

8. Lincoln, A. (1857, June 26). Speech on the Dred Scott decision. Teaching American History. https://teachingamericanhistory.org/document/speech-on-the-dred-scott-decision-3/

9. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

10. American Historical Association & Organization of American Historians. (2022, July). History, the Supreme Court, and Dobbs v. Jackson: Joint statement. https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022)

11. Tang, A. (2023). After Dobbs: History, tradition, and the uncertain future of a nationwide abortion ban. Stanford Law Review, 75, 1091-1156.

12. Annenberg Public Policy Center. (2024). Trust in U.S. Supreme Court continues to sink. https://www.annenbergpublicpolicycenter.org/trust-in-us-supreme-court-continues-to-sink/

13. Cornell, S. (2022, June 27). Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions. SCOTUSblog. https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/

14. New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).

15. Trump v. United States, 603 U.S. ___ (2024).

16. Shelby County v. Holder, 570 U.S. 529 (2013).

17. Citizens United v. FEC, 558 U.S. 310 (2010).

18. Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).

19. Democracy Forward. (2025). People’s guide to the U.S. Supreme Court: 2025-2026. https://democracyforward.org/work/research/peoples-guide-scotus-25-26/

20. Levendusky, M., Patterson, S., Jr., Margolis, M., Pasek, J., Winneg, K., & Jamieson, K. H. (2024). Has the Supreme Court become just another political branch? Public perceptions of court approval and legitimacy in a post-Dobbs world. Science Advances, 10(10), eadk9590. https://doi.org/10.1126/sciadv.adk9590

21. Sloss, D. L. (2022, July 6). The right of state governments to defy the Supreme Court. Markkula Center for Applied Ethics, Santa Clara University. https://www.scu.edu/ethics-spotlight/the-ethics-of-guns/the-right-of-state-governments-to-defy-the-supreme-court/

22. United States v. Lopez, 514 U.S. 549 (1995).