I started writing this piece to tell the story of the times the Supreme Court was defied. When the cases were all assembled in front of me, something became clear that I didn’t set out to prove: in almost every one, outright ignoring the Supreme Court was the strategically effective move.
The defiers didn’t just escape consequences. They won.
The record runs from 1793 to this month, and it includes both kinds of defiance: refusing a direct court order aimed at you, and continuing conduct the Court’s precedent prohibits.
The record opens in 1793 with Chisholm v. Georgia. Alexander Chisholm, settling a South Carolina merchant’s estate, sued the State of Georgia in federal court over unpaid Revolutionary War supplies, and the Supreme Court ruled the suit could proceed. Georgia refused to appear and refused to pay. The Georgia House of Representatives went further and passed a bill making any attempt to enforce the judgment a felony punishable by hanging.
Nobody forced Georgia to comply. Instead, Congress proposed and the states ratified the Eleventh Amendment in 1795, which stripped federal courts of the power to hear suits against a state brought by citizens of another state. The amendment erased the jurisdiction the ruling rested on, the judgment became unenforceable, and Georgia never paid a dollar. The first major act of defiance against the Supreme Court ended with the Constitution itself amended to adopt the defier’s position.
Worcester v. Georgia came in 1832. The Court held that Georgia law had no force inside Cherokee territory and that the state had illegally imprisoned Samuel Worcester, a missionary who refused to swear a loyalty oath Georgia demanded of white residents living among the Cherokee. Georgia ignored the ruling and kept Worcester at hard labor for ten more months, until he agreed to abandon further legal action and accept a pardon. President Andrew Jackson made no move to enforce the decision. The famous quote attributed to him, that John Marshall made his decision and could enforce it himself, is almost certainly an invention, but the inaction it describes was real.
Georgia lost nothing. The Cherokee paid with the Trail of Tears.
In 1842, Prigg v. Pennsylvania held that federal fugitive slave law overrode state law, and that states couldn’t prosecute slave catchers. But the decision also said the federal government couldn’t force state officials to help. Northern legislatures took that opening as far as it would go, passing personal liberty laws that barred their own judges, sheriffs, and jails from playing any part in capturing and returning people who had escaped slavery. Enforcement collapsed across much of the North because the federal government had almost no officers of its own on the ground.
No state was ever sanctioned for it. The principle those laws established, that the federal government cannot commandeer state officials to enforce federal law, is the same one the Supreme Court endorsed in Printz v. United States in 1997 and the same one sanctuary states rely on today.
Wisconsin escalated from noncooperation to outright refusal. In 1854, the abolitionist editor Sherman Booth helped a Milwaukee crowd break Joshua Glover, who had escaped slavery in Missouri, out of the county jail where federal authorities held him. The federal government prosecuted Booth under the Fugitive Slave Act. The Wisconsin Supreme Court freed him and declared the Act unconstitutional, then refused even to send the case record to Washington, forcing the United States Supreme Court to rule without it.
When the Supreme Court unanimously reversed in Ableman v. Booth in 1859, the Wisconsin court never entered the decision on its own records, and the legislature passed resolutions endorsing the refusal. Federal authorities rearrested Booth himself in 1860, and President James Buchanan freed him on his way out of office.
Then a president did it. In 1861, Chief Justice Roger Taney, sitting as a circuit judge, ruled in Ex parte Merryman that only Congress could suspend habeas corpus, the right of a prisoner to have a judge review the legality of his detention. President Abraham Lincoln ignored the order. He kept suspending habeas corpus, and Congress later passed a law allowing it after the fact, the Habeas Corpus Suspension Act of 1863.
His administration also refused to treat Dred Scott, the Taney Court’s 1857 ruling that Black Americans could never be citizens, as binding policy: the State Department issued passports to Black citizens, Attorney General Edward Bates issued an official opinion in 1862 that free Black men were citizens, and Lincoln signed the 1862 law banning slavery in the territories, which Dred Scott had declared beyond the power of Congress.
Lincoln defied the Chief Justice of the United States and won the war.
The one loss in this record is massive resistance to Brown v. Board of Education. A full decade after the Court declared segregated schools unconstitutional in 1954, only 1.2 percent of Black children in the Southern states attended integrated schools. Prince Edward County, Virginia closed its entire public school system from 1959 to 1964 rather than integrate a single classroom.
The defiance broke only twice and each case required its own use of force, when President Dwight Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne into Little Rock in 1957, and when federal marshals and troops put James Meredith into Ole Miss in 1962. Everywhere else it broke only when the Civil Rights Act of 1964 let the federal government sue school districts and cut off their money. Some would argue that public school segregation is still alive and well in much of the country, and funded with our tax dollars, just through other means.
The school prayer rulings prove the same point without the paratroopers. The Court struck down official school prayer in Engel v. Vitale in 1962 and devotional Bible reading in Abington v. Schempp in 1963. Two years after the rulings, 64 percent of Southern schools still opened the day with prayer. Enforcement required a local family willing to sue their neighbors and absorb the backlash, so in most places nobody sued, and the devotionals continued into the 1970s.
Congress joined the defiers in 1983. In INS v. Chadha, the Court struck down the legislative veto, a provision that lets one house of Congress, or even a single committee, cancel an executive action without passing a new law. Congress responded by writing more of them, not fewer. The Congressional Research Service counted more than 400 new legislative vetoes enacted in the two decades after the decision, and the separation of powers scholar Louis Fisher counted nearly 1,000 by 2013. Agencies honor them, unconstitutional or not, because the committees that write them also write the agencies’ budgets.
The states found the same lesson with marijuana. In Gonzales v. Raich in 2005, the Supreme Court confirmed that Congress can criminalize all marijuana, including a plant grown at home for medical use in a state that allows it. States legalized anyway. They built licensing systems, collected taxes, and turned a federally illegal drug into a regulated industry operating in the open.
The federal government stood down: the Justice Department’s 2013 Cole memorandum told prosecutors to leave state-compliant businesses alone, and since 2014 Congress has barred the department from spending money to block state medical marijuana programs.
Oklahoma showed how fast defiance can bend the Court itself. In McGirt v. Oklahoma in 2020, the Court held that much of eastern Oklahoma remains reservation land for purposes of criminal jurisdiction, which meant the state could no longer prosecute crimes committed by or against tribal citizens there. Governor Kevin Stitt attacked the ruling and state officials refused to cooperate with tribal governments on implementing it.
Two years later the Court retreated. Oklahoma v. Castro-Huerta handed the state shared jurisdiction to prosecute non-Indians for crimes against Indians on those same lands, recovering much of what McGirt had taken. As The New Republic put it, the state’s resistance paid off. The whole cycle took 24 months.
Texas engineered the most sophisticated version. In 2021, Senate Bill 8 banned abortion once cardiac activity is detectable, around six weeks of pregnancy, while Roe v. Wade was still binding law guaranteeing the right until roughly 24 weeks.
No Texas state official enforces SB8. Any private person can sue anyone who performs or assists an abortion, for a minimum of $10,000 per violation, and because no official enforces the law, there was no official a federal court could order to stop before the law took effect. The Supreme Court let it operate. In Whole Woman’s Health v. Jackson, the Court permitted only a narrow suit against licensing officials and never paused the law’s enforcement.
Abortion largely ended in Texas in September 2021, nine months before Dobbs overturned Roe. Texas nullified a constitutional right by procedural design while the right still existed on paper, and the Court’s answer was to eliminate the right.
On March 15, 2025, deportation flights under the Alien Enemies Act continued to El Salvador after Judge James Boasberg ordered the planes turned around, and he later found probable cause to hold the administration in criminal contempt for it. On April 10, 2025, the Supreme Court ruled 9 to 0 that the government must facilitate the return of Kilmar Abrego Garcia, a Maryland man the administration admitted it deported to a Salvadoran prison by error. Homeland Security Secretary Kristi Noem then told the Senate there was no scenario in which he returned. The government delayed for months before finally returning him in June to face federal criminal charges they’d assembled in the meantime.
And the contempt track went nowhere: a divided appeals court panel blocked the criminal contempt proceedings, and 16 months after the flights, no official has been charged, fined, or sanctioned in any way.
The defiers keep winning because the Supreme Court has no enforcement arm. Alexander Hamilton admitted as much while selling the Constitution to the public: the judiciary, he wrote in Federalist 78, has “neither FORCE nor WILL, but merely judgment” and depends on the executive even to make its judgments effective. The states, cities, and public add even more layers of cooperation that are entirely necessary for a court to have enforcement power.
Across 233 years, the enforcement required a president willing to send the 101st Airborne to public schools, or for a Congress willing to attach every education dollar in the South to compliance. This creates an asymmetric expense structure where the more jurisdictions refuse, and with greater frequency, the more expensive and resource depleting it becomes to enforce decisions.
Personally, I would rather have the executive branch fighting with states over every scrap of justice we deserve than a near uninterrupted flow of resources coalescing and strengthening their power structures, aiming to make GOP rule permanent
And notice who the defiers were. The most honorable defiance in this record came from abolitionists: Northern legislatures refusing to help catch human beings for enslavers, and a Wisconsin court refusing to acknowledge the same Supreme Court that decided Dred Scott. Defiance has mostly belonged to horrible people because defiance requires institutional power, and for most of American history the people holding that power were defending slavery or segregation. When abolitionists captured statehouses and state courts, defiance served abolition. When blue states wanted legal marijuana, defiance built a licensed industry against a standing ruling and won completely.
So why shouldn’t we also be willing to defy immoral and unjust and unconstitutional rulings, particularly when they come from the highest and most corrupt court in the land?
Red states figured this out. They are defying intentionally, and they have been for a while. They pass the program first and fill the docket with cases they know won’t all win.
By the time the Court rules, reversing feels radical and enforcing the law feels like the disruption.
The strongest objection is that passing a law you expect to defend in court is how legal change has always worked, that the National Association for the Advancement of Colored People built the campaign that produced Brown v. Board the same way, and that a definition of defiance covering Texas covers the civil rights movement too.
The objection assumes both sides are running test cases, and the assumption fails twice. Half of this record contains no test case at all: nobody was seeking judicial review when the planes kept flying after a judge ordered them back, when Texas installed more razor wire after the Court said the wire could come down, or when the president declined to enforce a statute the Court had just upheld unanimously. And the test-case half operates on real people for years while the appeals are dragged out.
Linda Brown couldn’t attend the white school while her lawyers litigated. Louisiana’s schoolchildren sit under the state’s chosen scripture right now, while its appeal proceeds.
Let’s look at what’s happening today. Alabama ran the 2022 congressional election on a map the Supreme Court later found illegal, then refused to draw the second majority-Black district the Court ordered in Allen v. Milligan until a court-appointed special master drew it for them. Louisiana, Texas, and Arkansas mandated Ten Commandments displays in public classrooms that Stone v. Graham declared unconstitutional in 1980, and the strategy is working: a federal appeals court has now treated Stone as obsolete and let the Texas law stand, teeing the question back up for a friendlier Supreme Court.
Oklahoma’s superintendent ordered every public school to teach from the Bible and called compliance compulsory. And Texas kept installing razor wire at the border after the Supreme Court ruled Border Patrol could cut it.
The presidency now does the same at national scale. The president signed an order stripping birthright citizenship from American-born children against the plain text of the Fourteenth Amendment and 128 years of precedent; the Supreme Court struck it down this June, and the administration answered this month with a new order attempting the same outcome.
The administration has refused for a year and a half to enforce the law requiring TikTok’s Chinese owner to sell it or shut it down, a statute the Supreme Court unanimously upheld, a refusal that Jack Goldsmith, the conservative lawyer who ran the Justice Department’s Office of Legal Counsel under George W. Bush, calls blatantly unlawful. The Government Accountability Office has repeatedly found the White House illegally impounding funds, meaning it simply refuses to spend money Congress appropriated by law, with senators counting at least $430 billion blocked. The president’s family collects payments from foreign governments through crypto ventures in open violation of the Foreign Emoluments Clause, the constitutional ban on a president accepting anything of value from a foreign state without the consent of Congress, including a $2 billion arrangement with a fund controlled by the United Arab Emirates; even the American Enterprise Institute, the conservative think tank, concedes the deal “clearly implicates” the clause.
The villains don’t comply in advance, because the record shows, unequivocally, that not complying works.
So why should the response be “but we have to respect precedent”? Defiance is how they’ve won so much ground.
In their eyes, their values and morals matter more than the Supreme Court or the federal government. And honestly, do we not feel the same way about ours?
Governor Bob Ferguson. Governor JB Pritzker. Governor Kathy Hochul. Mayor Zohran Mamdani. Any leader who wants to be successful in defending the rights and liberties of their residents, here is what we ask of you:
Don’t sue first. Do first.
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When conventional strategies fail, firefighters control wildfires by back burning. They use the very element they are working to extinguish, against it.
I think this approach is the conclusion ER suggests here.
Fascinating and, I admit, surprising. But a cause for optimism if enough people stand up.