Given that the statement came just two days after he had been handed a temporary setback by the Supreme Court in one of the three pending border-related lawsuits between Texas and the federal government, it was viewed by many on the left (and in the media) as outright defiance of the justices’ ruling, if not a flashpoint for a burgeoning constitutional crisis. Meanwhile, right-wing media — and an alarming number of Republican elected officials — egged Mr. Abbott on, encouraging him to do exactly what his critics claimed he was already doing, that is, to ignore the Supreme Court in the name of defending Texas’ sovereignty.
The reaction from the left was wrong. All that the Supreme Court did last week was to wipe away, with no explanation, a lower-court injunction that was effectively barring federal officials from removing the razor wire that Texas had placed along the border. Nothing in the ruling stopped Texas from doing anything, so there was no way in which Mr. Abbott could “defy” the court, even if he wanted to. His public and in-court arguments may be — and are — incorrect, but it’s not a constitutional crisis just because he’s making them. And although some prominent Democrats have urged President Biden to federalize the Texas National Guard in response, such a move would be legally dubious on its own — and would serve only to escalate the political conflict.
The reaction from the right was far worse. From members of Congress to right-wing commentators, the idea that Mr. Abbott should simply ignore the Supreme Court quickly drew enormous traction. For everyone urging Mr. Abbott on, this made painfully clear that the constitutional principles just don’t matter; all that matters is winning. If an issue is popular — or divisive — enough, then using it to score political points takes precedence over all other considerations, including an actual policy fix on Capitol Hill, respect for the other branches of government, or fidelity to the basic structure of our constitutional system, to say nothing of the dangerous legal and political precedents it would set to upend all of those things.
And then there’s the court itself — which, with full knowledge of what’s happening on the ground, didn’t exactly help matters by issuing an unexplained ruling that divided the justices 5-4. Rather than providing guidance that might have helped to defuse some of the legal disputes and political tension, or at least speaking with one voice, the justices introduced further confusion.
All of this augurs poorly for a real constitutional crisis — where, armed with public support, some person or institution in our system openly defies the constitutional checks and balances imposed by another. The pushback, in such a case, is going to require nuance and statesmanship — nuance to make clear to the public exactly what the crisis is (and isn’t) and how it was provoked; statesmanship to provide at least some response from those of the same political ilk for why the long-term costs of such subversion of the Constitution outweighs the short-term benefits. If and when disputes arising from that crisis reach the Supreme Court, the justices need to do more than bury their heads in the sand — by both explaining exactly what the Constitution does and doesn’t require and acting in ways that don’t simply reaffirm the public’s lack of faith in the institution.