In 2003, Justice Stephen Breyer referred to the “miracle” of national compliance with the court’s edicts, even in the wake of “controversial decisions” like Bush v. Gore. There is nothing inevitable or self-sustaining about this “miracle.” Courts do have some tools to mandate adherence to their orders—namely, their ability to hold individuals in contempt of court. But judges will surely hesitate to hold governors, legislators, and Cabinet secretaries in contempt. The truth is that we haven’t seen massive resistance to the Supreme Court since the segregation battles of the 1950s and ’60s. And despite two presidents’ celebrated efforts to integrate schools with the help of the National Guard, the South’s resistance succeeded in slowing the pace of desegregation.
This precedent is appalling. But it demonstrates that the playbook can work. Progressives should recognize the danger in adopting the tactics of segregationists. Getting to the point of massive liberal resistance to the court would require a significant psychological shift, since the left has long viewed the Supreme Court as a saving grace. Kavanaugh’s confirmation alone won’t bring Democrats all the way there. But if he leads the court into a frenzy of reactionary jurisprudence, progressives may feel they have no other alternative.