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Assume some legal question is brought up for a ruling by a US state supreme court. Further assume the question is on an issue which both the US constitution and US federal law takes no stance on; it is strictly a state matter. The state supreme court makes a ruling and then the state executive and/or legislative branches simply refuse to abide by that ruling.

What now?

Do any/all of the the state judicial branches have any actual enforcement capability? Not just the legal authority to demand compliance, but the physical capability to act when someone defies that authority?

Would the federal government have any power to intervene? Would they have to be requested to intervene? If so, whose request would suffice?

Would public opinion play any role? Would it matter if the residents of the state are in opposition to or support of the court?

Has anything like this ever happened?

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This happened recently in Washington state, when the state Supreme Court ordered the state government to comply with a constitutional funding mandate (McCleary v. Washington, 2012). The state did not comply for 6 years and was fined ($100,000 per day) for 3 years. I don't recall that the state paid a penny, and the courts did not demand payment of fines for that period. Public opinion did not have any obvious effect, but you could take this to Politics SE to get a lot of opinions as to whether public opinion mattered.

The federal government can't get involved, unless they (the federal government) first make a federal issue out of it, perhaps because of some law suit. Power of enforcement is essential non-existent, given a sufficiently non-cooperative state government.

I should point out that the court's order was a bit vague, that is, it was not "release Smith from custody instantly", it required the government to act to the satisfaction of the court.

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  • Would the federal government have standing to sue the state? Would federal courts even have jurisdiction to try a lawsuit brought by someone else? It sounds like until someone can construct a connection to federal law the federal government has no power here. (To be clear, I'm not arguing that it should... or should not. I can see major issues with either option.) – BCS Feb 23 at 2:36
  • In the McCleary case, the federal government had no standing at all. I suppose one could construct a civil rights case where a state supreme court ordered a state to cease doing X where X is a violation of civil rights. – user6726 Feb 23 at 5:24
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This is an interesting question, but I think it's more a political science than law question. You've set up the hypothetical so that there's a relatively clear legal answer: the state leg/exec branches are in violation of the law, but because it's a purely state matter there's probably nothing the feds can do. Who balks first in this game of chicken, and what effect this has on our institution's balance of power, that's more a polisci question. But this is a thought provoking one!

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    Strictly speaking, I'm actually only interesting in the legal aspects. The poly-sci aspects are a different, also interesting question, but not the one I'm asking here. – BCS Feb 23 at 2:31
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It's happened before

Worcester v Georgia, 31 U.S. (6 Pet.) 515 (1832):

In an April 1832 letter to John Coffee, President Andrew Jackson wrote that "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."

This happened in the context of the Nullification Crisis and ultimately, after some sabre ratting by the Federal government as a solution was reached where South Carolina pardoned Worcester and Butler which made the Supreme Court's decision moot.

If it happens consistently ...

Well, there are many places around the world where the government does not adhere to the judgement of its courts or effectively dictates the judgements that that like - they are known as authoritarian states or failed democracies.

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The enforcement of a state court's order would fall to the Office of [insert county of jurisdiction] Sheriff. Sheriff's exist in 48 states in the union, (The office does not exist in Alaska, which has no counties and Connecticut, which has no devolved county government. In addition The District of Columbia and the five inhabited U.S. Territories lack sheriffs due to no County level divisions.). In the U.S., Sheriff denotes an elected (usually, Hawaii and Rhode Island appoint Sheriffs rather than elect tem) head of a police agency that has at least civil law enforcement authority within a county. This means that they are the police agency that will typically enforce warrants and provide bailiffs to court houses in the county, as well as effect arrests for contempt of court charges.

In the U.S., Judges have the authority to charge criminal "Contempt of Court" against anyone refusing to comply with a judicial order. Contempt charges are classified in two sets of categories: Direct vs. Indirect (Did your actions with contempt occur in front of the judge aka in the court room OR out of judicial view AKA out of court room) And Criminal vs. Civil. In the case of Criminal contempt, the charge must be proven beyond a reasonable doubt. But in civil contempt, the charge need not meet this high standard of proof to find guilt and it falls to the party benefitting from the contempt to enforce.

In an case before a state supreme court, typically the cases are all civil (since all crimes, the "plaintiff" is the state, not the victim of the crime), which normally would prevent contempt of court charges from becoming criminal in nature. When the contempt is in violation of a court order, the finding of guilt in contempt allows the Sheriff to enforce any sanctions until the contemptuous behavior ceases. This could be a fine (usually levied per day while the behavior continues) or even jail time (even for civil contempt) until such time as the behavior stops. So in the event of a State Supreme Court being defied by the government, the Judiciary may direct the relevant Sheriff's office to enforce contempt charges against the state officials violating the rules (The U.S. doesn't have any parlimentary governments I.E. where the Speaker of the Lower House has executive authority, so a legislature changing the law so that the judge's decision is moot is perfectly valid. Execution of the law falls to the governor of the state, so the officials in that office will likely be the subject of contempt charges).

A similar system exists at the Federal Level with the U.S. Marshal Service (USMS) which serves the same functions as a Sheriff for the Federal Courts (U.S. Marshals are appointed by POTUS rather than elected, however). If a state was to violate SCOTUS, the Marshals would function in the same capacity of enforcement. They are the civil enforcement division of the Department of Justice (criminal enforcement is the FBI). Like Sheriff's Marshals have deputies to assist the office holder. Deputy (Sheriff or Marshal) denotes a regular employee who is ultimately overseen by an elected or appointed sheriff/marshal (a regular deputy will still have his job no matter the outcome of the next election). In addition, the Sheriff/Marshal office holder can uniquely deputize non-regular deputies to temporarily increase their forces in times of personnel needs. Typically, this can mean an ordinary civilian can temporarily be named a deputy, but also may allow the sheriff or marshal to draft non-deputy local police personnel to assist in their duties (During the 2020 Anthony Brown protests in Portland, Oregon, the Portland Police officers were deputized by the U.S. Marshals Service so that they could assist in arresting protesters who were attempting to burn the Federal Court House after local officials refused to arrest such individuals. All such arrests were thus handled in U.S. Federal courts rather than State Courts.).

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  • All rather interesting background, but that is how things are supposed to work. The question is what can/does happen when those same entities responsible for enforcing court orders are in fact the ones acting in contempt? -- I know the answer is likely "bad things" but are there any measures of enforcement short of dragging the 2nd amendment into the picture? – BCS Feb 23 at 17:58
  • This is why the vast majority of civil law enforcement are positions that are either voted on by the local populace OR appointed by people answerable to voting populace. The idea of frequent elected leadership is so important to the founding fathers, as it was set up to make the 2nd amendment a sort of nuclear option... they wanted to make it easy to change the leadership before having to have another long revolution. – hszmv Feb 23 at 18:00
  • So in other words you are saying: "nothing, until the next election cycle"? – BCS Feb 23 at 18:29
  • Yes. The fact that the system is slow to respond to situations is a feature, not a bug. – hszmv Feb 23 at 18:34
  • I never said anything about the setup being good or bad :0) My interest is in enumerating what the setup is. (FWIW: I can think of a great number of potential problems with both the current setup, and any alternatives I've hear mooted. Given what is currently in place seem to work, I would be a fool to suggest it need to be changed. Further, as long as people can move, the issue at and below the state level can only get just so bad.) – BCS Feb 23 at 19:35

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