One intriguing aspect of the Covid lockdowns has been the shift in power from an oligarchy whose edicts were often taken to be the supreme law of the land to an empire where a single person now dictates with the same absolute authority. From the nine black-robed Justices ruling from their marble temple to the white lab-coated dictates of Emperor Fauci
How is it that our supposedly representative Republic come under the control of those who are entirely unelected and wholly unanswerable to the people? While it’s easy to pinpoint why and how this exercise of Supreme power came to be wielded by Dr. Fauci it’s much harder to parse out how, before that The Supreme Court came to replace the Constitution as the Supreme law of the land.
Let’s start by taking a look at Article VI – The Constitution’s Supremacy Clause:
This constitution and laws of the United States which shall be made in pursuance thereof of, and all treaties made, or which shall be made, shall be the supreme law of the land.
So the Constitution is the supreme law of the land. As are all laws and treaties made in pursuance thereof. But what about decision of the Court? Are Supreme Court rulings on the meaning of the law themselves the Supreme Law of the land? When the Supreme Court hands down an opinion, Is that opinion the supreme law of the land? Does a court’s ruling act, functionally as an amendment to the Constitution? If so, when a ruling is overturned does it strike out that amendment? Does judicial supremacy exist?
Answering this question takes us back to one of the most fundamental cases in the entire corpus of American Jurisprudence. 1803 Marbury v Madison. Many people believe it was here, with this case, John Marchall created the idea of Judicial Review, thus giving the Court ultimate authority. But this is not at all the case.
Indeed, a look at the exchange of letters published during the Constitution’s ratification debates between anti-federalist Brutus and Alexander Hamilton, writing as Publius in the Federalist Papers bear this out. Through Brutus’ 11th, 14th and 15th essays and Federalist papers 78, 79, 80 and 81. Which at the time were an actual conservation played out in a New York newspaper. With Brutus 11th essay a direct response to Federalist 78. Federalist 79 a direct response to Brutus 11th essay and so on.
There is a fantastic article about these specific exchange between Brutus & Publius I recommend:
Slonim, “Federalist No. 78 and Brutus’ Neglected Thesis on Judicial Supremacy.” https://conservancy.umn.edu/handle/11299/170108
For our purposes here, it should suffice to say this principle was regarded as a fundamental part of our system of government from the outset-
Arising from Article III, § 2, Clause 1
The Judicial Power shall extend to all cases in law and equity arising under this Constitution , the laws of the United States and treaties made or which shall be made under their authority.
In brief, Marshall found part of the judiciary act of 1789 unconstitutional. It purported to give the court a right to issue a writ of mandamus in a case where the court is acting in its original jurisdiction. This was inconsistent with the constitutionally limited jurisdiction of the Supreme Court. Who have a duty (judicial duty) to follow the higher law. Constitution over statute. Marbury doesn’t say the court establishes the supreme law or that only judiciary interpret supreme law.
This is not something limited to the Supreme Court, or to the judiciary. Anyone who has ever worked in a government job on either the state or federal level will know that all employees in government have duty to constitution. All state or federal employees. This is in accordance with the Oaths Clause of Article VI, which reads:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….
Like law enforcement, if they pull someone over and want to search their car you must first weigh the constitutionally of those actions. Do you have probable cause as is required by the 4th amendment?
Even a county commissioner deciding whether or not to approve a parade permit should start with first principles. Will the decision to grant or deny that permit be an infringement of the requesting party’s first amendment rights?
All Government officials always have duty to defer to constitution. Each department makes decisions for themselves. This is an established doctrine known as “departmentalism”
Only well into the 20th century did courts begin to write decisions claiming that their decisions are themselves the supreme law of the land
We need to go back to 1954 and the seminal case of Brown v Board of Education. It’s important to keep in mind that despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties. The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone.
First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.”
Second, Cooper asserted a principle Constitutional lawyer and scholar Josh Blackman has termed Judicial Universality. This doctrine contends that the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases. Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.”
Rather, they were novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate.
At the time nearly two dozen states racially segregated their schools. But Brown only considered the constitutionality of the laws in four of those States: Kansas, South Carolina, Virginia & Delaware. In a unanimous decision The Warren Court found that segregated public schools violated the equal protection clause of the fourteenth amendment. However the Court did not order that all schools nationwide must desegregate immediately. Instead the Court ordered another round of oral arguments to decide how Brown should be implemented
One year later in Brown v Board of Education II (1955) –or simply Brown II – the Justices issued an order to the lower courts in Kansas, South Carolina and Virginia “Enter such orders and decrees as are consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to their cases.” Officials in these three States were now bound by the Supreme Court’s judgement to integrate their schools with “all deliberate speed.” (The Delaware schools had already found that the segregated schools were unlawful.) But what about other States that were not party to Brown? Cooper v Aaron (1958) would resolve this question.
Very often when the courts are deciding issues in a tumultuous time, out of necessity they sometimes reach too far. And in the years since this case the court has somewhat equilibrated. Certain aspects of that decision they have relied on; certain aspects they haven’t relied on. Cooper defines two different concepts that are often conflated -the judgment of a court and the courts precedent-
When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bill cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it come to the Supreme Court people flip that on its head. They say “well the Supreme Court has ruled that makes it binding on everyone everywhere.”
That cannot be the case but the Supreme Court’s precedents are controlling for all courts. So when the Little Rock Central High School said ‘I don’t care I’m going to keep segregating my school. I don’t care what the brown ruling said.’ it can be sued. And a state judge or a district judge can bind you, to enjoin you to comply with brown. But that additional step of converting a precedent to a judgment is very important especially in civil rights litigation, though it’s often not very well understood. And the reason many people fail to understand this is because of Cooper v Aaron.
This is due to the two aforementioned concepts that come from Cooper -one is judicial supremacy- the other -judicial universality–
This amounts to Smith suing Jones and the final judgment binding Bill. The Court’s unitary opinion in Cooper’ which was signed by all nine justices which is very rare; says these aspects were basic and relied on settled doctrine. This article will endeavor to show that particular aspect of the decision is not correct. These were broad novel and unprecedented assertions of power that are inconsistent with how all courts operate yet five decades later these myths remain.
This all came about as part of a battle against the anti-canonical doctrine of Plessy v Ferguson (1896) While challenges to institutionalized racial segregation can be traced back to the Progressive era of the 1920’s and 1930’s and cases brought by the NAACP that challenged “Separate but Equal” and which laid the foundation for the then proto-doctrine of Substantive Due Process. These early victories are what spurred the School desegregation cases of the 1950’s that, for the first time, sought to take on and overturn Plessy directly.
This is where the modern story of desegregation officially begin with Brown v Board of Education (1954) and It’s the follow up case Brown v Board of Education II (1955) –or simply Brown II– Which did not purport to desegregate schools immediately, instead Brown II ordered desegregation take place “with all deliberate speed” The idea behind that now famous instruction was they should let the local courts who were on the ground craft mandates and injunctions to deal with each situation as it comes. Brown II applied this to North Carolina & Virginia. And also to Washington DC in the companion case Boling v Sharpe (1954) that dealt with school segregation in Federal law, which was struck down as a violation of the 5th Amendment’s Due Process clause.
So was the Little Rock School District bound by the decision? The simple answer, using our earlier example, when Smith sues Jones, is Bill bound? The answer would be no. As it turns out the Little Rock School board, which was elected, and at the time made up of mostly segregationists, decided they were not going to go along with this unless they were dragged kicking and screaming.
Ultimately, a federal district court in Little Rock issued a desegregation order to integrate the schools, including Little Rock Central High School. Meanwhile, a state court – the Pulaski County Circuit Court – issued an injunction saying don’t integrate the high school.
In effect, we had two different courts within the same jurisdiction issuing two different orders. The federal court was saying integrate; the state court was saying do not integrate. Now, most would assume that, of course, the federal court prevails. But that’s not the case. And nothing in the supremacy clause of the Constitution states that. State courts and federal courts have equal authority to interpret the Constitution.
The conflict though arises when you’re a state official asking yourself “Which court do I listen to?” If I listen to the federal court the state court might hold me in contempt if I listen to the state court the federal court can hold me in contempt.
Only the U.S. Supreme Court could resolve that kind of tension. This is how the conflict in Little Rock began. Then it got worse as becoming what you might refer to as a game of injunctive whack-a-mole. A district court issued a ruling binding the school board. The governor showed up with the National Guard to block the black children from entering the school. The federal district court issued an injunction against the governor and the National Guard. At that point, the Little Rock Police department, which was not bound by the prior injunction, showed up to keep the black children from entering the school. At this point, we have a crisis because the officials are taking advantage of the distinction between judgment and precedent.
Ultimately, President Eisenhower sent in troops in a very famous scene where they escort the Little Rock nine up the steps to the classroom. Eisenhower was deliberate and very careful in his wording in the executive order he issued, citing the district court ruling and said that was what he was enforcing. He didn’t mention the Supreme Court. In fact, one of the biggest criticisms held in regard to Eisenhower was he never came out in support of Brown.
Eisenhower remained ambivalent toward Brown and never said much about it. But he said he would enforce the district court rulings. Schools could not disregard them. So at that point, students were escorted into the school, By the district court did something that was very much unexpected. It granted a 30-month extension for the integration plan. The judge said that because there was chaos and bedlam and turmoil, he couldn’t allow this integration order to go into effect.
The 8th circuit then reversed that saying that all deliberate speed means now. The 8th circuit stayed its decision then an appeal went to the Supreme Court. We should be careful to remember that with Cooper v Aaron what was at issue were the decisions by the members of the school board. It wasn’t Faubus versus Aaron. (There was another case involving Faubus, this was not it.)
The Supreme Court held that the 30-month extension was not consistent with all deliberate speed. As Chief Justice Warren stated: “Merely having chaos on the ground did not justify two full years of continuing non-integration.” But the Court didn’t stop there; upon review of the opinion of the 8th circuit court, it held that the first 17 pages of the opinion were enough to dispose of this case.
But the Court then moves on to the last two pages of the public opinion, This section answers whether the Arkansas governor was bound to enforce Brown even though he was not a party to that case. And this is where the Court develops the Cooper myths
First, there is Judicial Supremacy. There is a single sentence in Cooper that sums it up very well. The court says “the interpretation of the 14th amendment enunciated by the court in the Brown case is the supreme law of the land.” That is it’s not just the 14th amendment that’s the supreme law of the land, it’s the Court’s interpretation of that amendment that is itself the supreme law of the land.
The second principle which this article calls Judicial Universality. The best summary for that is found written by Justice Breyer in his book: “Making Democracy Work.” Breyer wrote: “The court in Cooper actually decided that the constitution obligated other government institutions to follow the Court’s interpretation. Not just in a particular case but in similar cases as well.”
In fact, neither of these statements can possibly be true. If a simple majority vote in the Supreme Court could be declared the supreme law of the land and the other majority could not change it absent a constitutional amendment. And under our foundational principle of jurisdiction Smith versus Jones- courts can only bind the parties in any given case. The mere fact that the Supreme Court is supreme doesn’t change these facts. Critically, with respect to Judicial Universality, no court since has ever reached these conclusions. And with respect to both principles, no court before has ever reached these conclusions. In fact, the Court’s opinion had virtually no practical effect.
The Little Rock school crisis continued unabated. Immediately after Cooper was decided, the Arkansas governor transferred all the public schools to private charters thereby getting out of the state action doctrine. Private charter schools weren’t bound by the 14th amendment, so for a full year, there were no public schools in Little Rock. What broke this log jam? It wasn’t a court. It was more moderate members being elected to the school board. They then agreed to engage with the reintegration plan.
So despite the Supreme Court’s opinion noble opinion, it had zero effect practical effect.
In the end, the Supreme Court “supremacy” didn’t go very far. In the 5 years after Cooper, districts across the South basically ignored it. Did the Supreme Court Grant Certiorari? Not even once. Despite numerous cert petitions from segregated school districts across the South, the Court wouldn’t take any of those cases. It just looked the other way.
It’s really easy for lawyers in Washington D.C. to sit in their marble palace and issue these opinions. It’s a very different matter putting them into effect
Perhaps the central question is this: could these doctrines be supported by past precedent or does it merely follow from these precedents? At first glance, answering that question might well be mistaken for Judicial Sophistry – But it is much more.
What makes this a very big deal is the Court said these doctrines are basic and well settled. That would imply this issue must have been decided 200 years ago. But what you see with each successive draft is that they move away from these various precedents. Now these precedents confer a rule that we can build upon, one that follows from it. But that’s a very different principle than saying these are well settled.
Among the leading cases are Article VI of The Constitution, which includes the supremacy clause and the oath’s clause, Marbury v Madison (1803), United States v Peters (1809). While Peters is not well known, or oft studied, it was nevertheless a fairly significant case. And a series of cases that have come to be known as the Booth Case – A series of cases beginning with In Re: Booth (1854) out of the Wisconsin Supreme Court and Ableman v Booth (1859) from the U.S. Supreme Court. The Booth case dealt with whether a Wisconsin State Court could issue Habeas to a federal prisoner- that is when someone tried to obstruct the capture of a slave they were thrown in federal custody. Could a state court free a prisoner in Federal court? This was a really important case that no one talks about today. This was Justice Taney’s other major opinion nobody wants to talk about, but is a very big case all the same. The last Is Sterling v Constantin (1932) this is a great Texas case where the governor declares martial law and he basically tries to put limits on the production of oil in his own state. And there was a lawsuit filed in the state in which he stated he was not subject to any Court’s jurisdiction because we were under a state of martial law. It’s a fascinating case –
But none of them stand for the propositions which Cooper cited and the research did suggests that the judges realize this. With each successive draft, the court relied less and less on these precedents. They more or less said, “Well let’s use these rules and build upon them. These changes acknowledged that the court never before claimed such power of supremacy and universality. It was breaking new ground.
Now, the mere fact that they’re breaking new ground doesn’t mean they’re wrong. Very often, courts make new rulings and we can justify them. But these claims were novel, new, not supported, and have not really been used since. This is why these “principles” can safely be called myths. They existed to deal with this exigency, which was unquestionably awful.
But in hindsight, people have gained a little bit of clarity. And as has been mentioned before, ultimately these judgments had virtually no effect on the school districts that did an end-run around these rulings by transferring the schools from public to private charters. At once, this doctrine was laid bare. No court, no matter how high in stature, can force people to accept a judge’s interpretation of the Constitution. The Supreme Court’s authority is, at best, merely persuasive.
The last point worth focusing on is how Cooper has been developed in the last half-century. The court has not shied away from this principle of judicial supremacy. It’s provided in cases such as Powell v McCormack (1969), Baker v Carr (1962), United States v Nixon (1974), to name just a few. But in those cases, there was no meaningful resistance to the court’s interpretation. After the Supreme Court ruled on United States v Nixon, President Nixon turned over the documents and he resigned shortly thereafter.
It was only in slavery and segregation that you found such massive resistance to the Supreme Court’s opinion. Indeed after Cooper was decided people just disregarded it. Despite all best efforts, during my research into this I could not find a single example of the Court using Cooper as a precedent for judicial universality. Not even during the Massive Resistance.
So Justice Breyer, who really encapsulates this theory, can’t really peg down where this doctrine is in Cooper. This lends further credence to calling Cooper a myth. It’s not that it actually says this but I think it’s how people have understood it to be said. In fact, there have been some lower court decisions that have said the opinions issued by U.S. Courts of Appeals are binding on everyone. In other words, if the 9th circuit issues a ruling it binds the government everywhere. This was a Reinhardt opinion. You have a similar decision in the southern district of New York. Those have not gone anywhere.
But at the bottom, the Supreme Court is still a court and follows the usual rules of a court. Its precedent is persuasive to everyone – state courts and federal courts alike. But its judgments are only binding on the named parties. Stating the principles of judicial supremacy and universality in the absence of antagonism is simple enough. When trying to put them to effect, however, they are exposed as mere myths.
Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.