The US Supreme Court's 2015 gay marriage decisionFootnote 1 has raised anew the question whether the Court's interpretation of the Constitution is the “final word” on constitutional meaning. Although in this case the Court majority made no overt assertion of judicial supremacy, opponents of the decision have asserted their right to resist and refuse to comply with the decision, and supporters have responded that the rule of law requires their compliance.Footnote 2 This contemporary controversy raises one portion of the debate about judicial supremacy: when is it appropriate or legitimate for someone to refuse to comply with the law? This is of course an important question in legal theory. In his extended argument against judicial supremacy Mark Tushnet uses the case of Cooper v. Aaron Footnote 3 to make arguments about the conditions under which such refusal to comply can be considered legitimate or illegitimate.Footnote 4 In this article I use the same case to explore a different dimension of the question: when is it legitimate or illegitimate for the Court to assert such a claim?
In the modern debate about the legitimacy of assertions of judicial supremacy by the US Supreme Court, Cooper v. Aaron, the 1958 case involving school desegregation in Little Rock, Arkansas, is identified by all sides as a critical case in justifying their argument. Defenders insist that the case exemplifies why there must be a final authority in matters constitutional. Critics argue that the Court was wrong either as a matter of law or as a matter of empirical reality, or both. In this article I argue that while it is true as a matter of empirical reality that the Court's interpretation is not the final word, and that Cooper and the desegregation cases provide ample evidence of that, the assertion of judicial supremacy in the decision can be defended nonetheless for several reasons. These reasons include the facts and context of the case, the support of at least one other branch of the federal government, the constitutional issues at stake, and the Court's own recognition of its institutional weakness. To defend Cooper, however, does not require the defense of all assertions of judicial supremacy. I conclude by briefly considering several later cases where Marbury and Cooper are relied on for judicial supremacy claims and offer a preliminary analysis of how we might distinguish between more legitimate assertions of judicial authority and less legitimate ones.
What Is a Judicial Supremacy Claim?
The claims or assertions of judicial supremacy I consider in this article are arguments made by the Court itself about why it is deciding the case and why its decision must be followed. I do not consider in this analysis the question whether the Court should have taken a case in the first place, and, after having done so, whether they should have decided it in a particular way. In popular and academic discussions of controversial constitutional issues, it is difficult to separate out when the Court is being criticized (or praised) for making a claim about its institutional authority, and when that criticism (or praise) is actually for the outcome or content of the decision itself. Whether the Court should take a case and whether it has correctly interpreted the Constitution in deciding it are also important issues, but not the one I address here. My focus is on the Court's claims of institutional authority to be the final arbiter of constitutional meaning.
Judicial supremacy claims are not the same thing as the exercise of judicial review. In any case where the Court is reviewing an action by federal or state governmental actors to determine whether or not the action is constitutional, it exercises judicial review. Judicial supremacy claims are made by judges (and sometimes by other political actors as well) in the exercise of judicial review but not in every exercise of that power. These claims go beyond a simple assertion of the authority to review a government action for constitutionality, and are instead an assertion that the Supreme Court is the ultimate interpreter of the Constitution, that its decisions are “the final word” on what the Constitution means, and that all other governmental actors are bound to comply with the decision of the Court because it has the final say on constitutional meaning.Footnote 5
Walter Murphy pointed out long ago that “‘to decide cases’ under the Constitution is not the same as to interpret the Constitution in a manner that all other public officials must follow in situations other than those particular cases.”Footnote 6 Today, there is little disagreement that courts have the responsibility in individual cases to hold the actions of government officials up against the Constitution and to rule on whether those actions violate some constitutional provision or principle. Certainly in the context of American constitutionalism this is widely accepted and expected as an appropriate judicial function, even when there is disagreement about how a case was decided. Indeed, the extraordinary protection of life tenure for federal judges was justified from the start as the necessary condition to allow judges to serve this function.Footnote 7
Although every exercise of judicial review is not an assertion of judicial supremacy, it is always the case that claims of judicial supremacy rely on the landmark cases of Marbury v. Madison,Footnote 8 decided by the Court in 1803 and recognized as the judicial precedent establishing the power of judicial review, and, after 1958, on Cooper. Justices asserting judicial supremacy rely in particular on one passage in the Marbury opinion. In justifying the power of judicial review, Marshall argued that “it is emphatically the province and duty of the judicial department to say what the law is” and that “those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”Footnote 9 From that claim come assertions that Marbury stands for the notion that the Court is the ultimate interpreter of the Constitution, and that other political actors must defer to the Court's interpretation of what the Constitution means.Footnote 10
Marbury, Cooper, and the Judicial Supremacy Debate
One thing participants in the debate about judicial supremacy agree on is that Cooper v. Aaron marks the beginning of modern assertions of judicial supremacy by the US Supreme Court.Footnote 11 In Cooper, the Court refused to grant the school board of Little Rock, Arkansas, a two-and-a-half-year delay in implementing its school desegregation plan. The school board sought the delay because of the violent resistance to its quite minimal desegregation effort (enrolling nine black high school students in a previously all-white high school) and because the governor, state legislature, and some state courts had taken actions to keep the school board from implementing its plan. In rejecting the school board's request for delay, the Court made a strong claim of judicial supremacy. Responding to the claim by state officials that they were not bound by the Brown v. Board of Education decision, the Court said, “It is necessary only to recall some basic constitutional propositions which are settled doctrine.”Footnote 12 Citing the Supremacy Clause of the US Constitution and the Marbury decision the Court said:
In 1803, Chief Justice John Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison … that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States. … No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.Footnote 13
Keith Whittington contrasts the tempered claims of John Marshall in Marbury v. Madison to what he considers the less temperate claims of the Court in Cooper, to suggest that the modern claims of judicial supremacy contain an arrogance about judicial power not found in the earliest Court statement about judicial review.Footnote 14 In fact, a number of authors have argued that this use of Marbury misrepresents Marshall's much more constrained notion of judicial power.Footnote 15 It may be a judicial function to interpret the Constitution, but this does not mean that the Court is the sole or supreme or final interpreter of constitutional meaning. This proposition has been challenged on both normative and empirical grounds.
Normative challenges tend to rely on democratic theory and emphasize the important role of the people and their representatives in creating constitutional meaning. For example, Larry Kramer argues that at the time of the founding, the Constitution was understood to be “an act of popular will” and it was the people “working through and responding to their agents in the government—who were responsible for seeing that it was properly interpreted and implemented. The idea of turning this responsibility over to judges was simply unthinkable.”Footnote 16 Mark Tushnet argues that the Constitution should be “taken away” from the courts and advocates instead for “populist constitutional law” which “distributes responsibility for constitutional law broadly” and “gains its content from discussions among the people in ordinary political forums, and political leaders play a significant role in assisting the people as we conduct those discussions.”Footnote 17 The empirical challenges point to many, many instances throughout American history where the Court has quite clearly not had the final word, its infamous Dred Scott decision being Exhibit A, and the school desegregation cases providing further ample support for the dismissal of judicial supremacy as a matter of fact.Footnote 18
Given the overwhelming empirical evidence that challenges the claims of judicial supremacy, why is it that the Court, some political officials, and some legal scholars continue to make and accept the claim? Explaining the Court's continued reliance on the claim is not difficult. James Madison recognized long ago that the inhabitants of the three branches of government would assert their authority in ways that defended their institutional interests,Footnote 19 and one could argue that claims of judicial supremacy by the Court are simply its way of defending itself against challenges from other political actors. Indeed, many of these assertions, including Marbury and Cooper, involve factual situations where the very authority of the Court to be involved in the case is being challenged by another branch or by state officials. In this sense, we might think of the Court's claims of supremacy as “cloaking institutional self-doubts, much as a gorilla pounds his chest.”Footnote 20 But why would other officials make similar claims? Whittington and Graber both argue convincingly that modern judicial supremacy has been constructed by officials and groups outside the Court who have seen it in their own political interest to support judicial reviewFootnote 21 and to make judicial supremacy claims.Footnote 22 As we will see later, President Eisenhower's early statements about Brown v. Board of Education and his public justification for his decision to send troops to Little Rock provide an excellent example of this phenomenon.
For legal scholars, the defense of judicial supremacy rests primarily on normative arguments about the importance of having finality and stability in the law, of establishing the “rule of law” in society, and of having certain transcendent values protected from majoritarian politics. For example, Alexander and Schauer argue against “extrajudicial constitutional interpretation” and “the accepted wisdom … that Cooper's statement of judicial supremacy was an overstatement, politically necessary but indefensible as a general claim of judicial interpretive authority.”Footnote 23 Instead, they argue that public officials and citizens should follow the law as determined by judges even if they disagree with it because “coordination and the settlement of disagreements—and the individually and socially beneficial goods these goals produce—provide content-independent reasons for the existence of the state, of law, and of the obligation of obedience to the law.”Footnote 24 To allow multiple actors to be equally authoritative would create “interpretive anarchy” and produce “no settlement of what is to be done with respect to our most important affairs.”Footnote 25 They conclude:
one of the primary reasons for entrenching a constitution as law is to achieve a degree of settlement and stability, and another is to remove a series of transcendent questions from the short-term majoritarian control. Both of these justifications, however, also support judicial supremacy, and thus the decision to treat stability, settlement and counter-majoritarianism as important takes us a long way towards acknowledging the importance of judicial authoritativeness as well.Footnote 26
Cooper v. Aaron, then, is a central piece of evidence for both sides in the debate about judicial supremacy. Whether it is seen as a decision accurately relying on Marshall's claims in Marbury or a far more judicially arrogant assertion that cannot be reconciled with democratic theory or constitutional reality, Cooper stands at the center of the divide. To defend Cooper is to embrace judicial supremacy and to challenge judicial supremacy is to attack Cooper. I reject this either/or proposition and instead defend Cooper but reject blanket assertions of judicial supremacy. I take as a given the overwhelming historical evidence that the Court does not have the last word and can best be understood as being in dialogue with the other branches and political actors in the system,Footnote 27 and in the area of school desegregation there is abundant evidence of this reality.Footnote 28 Instead, I want to engage in an argument, both normative and empirical, about the conditions under which some, but not all, assertions of judicial supremacy by the Court and other political actors might be both understandable and legitimate because they protect constitutional values from majoritarian politics and/or resolve a constitutional impasse. I contend that Cooper meets these conditions but many other cases with a similar assertion of judicial supremacy do not.
Defending Cooper
There are a number of conditions present in the Cooper case that lend credibility and legitimacy to the Court's assertion of judicial supremacy. First, the facts of the case itself—school-aged children being confronted by violent mobs egged on by self-interested public officials—no doubt contributed to, and continue to contribute to, the willingness of many to accept the Court's claim that it must be obeyed. Second, the Court had received the support of the executive branch both through the commitment of troops, the public statements of the president, and the argument made by the solicitor general in both his brief and oral argument. Third, there was a serious issue of constitutional authority at stake that went beyond the issue of the Court's authority and challenged the Civil War settlement of the authority of the national government more generally. Fourth, the papers of justices involved in the decision demonstrate their recognition of their institutional weakness and their need to rely on the executive for support. There is no reason to believe that an arrogant or inflated notion of their power was driving the decision. Indeed, the record supports the opposite conclusion. Finally, the answer to the question, “What would have happened had the Court not ruled this way?” is one that few historians of the time disagree on. The consequences of backing down would have meant that a constitutional right upheld just four years earlier in Brown v. Board of Education would have no meaning in many places and that violent resistance would be successful. The fundamental constitutional value of equal protection of the law would have been sacrificed to mob violence. This would have had negative implications not just for Brown but for a myriad of other issues involving states’ compliance with federal authority.
Condition 1: The Facts On the Ground
The story of the Little Rock Nine and of the Cooper v. Aaron case has been told well and extensively in other places.Footnote 29 My purpose here is not to tell the whole story again but to emphasize certain critical facts that contribute to an understanding of how the Court came to the conclusion that it must reject the delay requested by the school board and make the admittedly exaggerated statement that it did about its authority. In the context of these facts, where the behavior and language of those resisting were extreme, a more ambiguous and self-deprecating response might well have contributed further to the problem. As Daniel Farber argues, “the Court's hyperbole … is understandable given the circumstances.”Footnote 30
In short, the Little Rock crisis arose out of public resistance, organized and encouraged by state-level officials, to the local school board's modest but good-faith effort to begin implementation of the Brown decision. Its plan called for beginning with a small group of black students integrating the white high school and gradual implementation by grade over the next seven years. The plan was approved by the federal district court and implementation was to begin with the admission of nine black students to high school in the fall of 1957. Had Governor Orval Faubus not intervened, it seems likely that the gradual integration of Little Rock schools would have occurred without it becoming a national test case for the resolve of the federal government and the US Supreme Court. Faubus did intervene, however, first by trying to get a state court to enjoin the school board from implementing the plan, and then calling out the National Guard to block the integration. Claiming that the action was taken only to preserve order (although at this point there was no disorder), he instructed the Guard to block the black children from access to the high school. “From that time forward,” writes Farber, “Little Rock was plagued by angry white crowds which jeered and spat upon the nine black children, blocked their access to the school, and attacked reporters.”Footnote 31
The drama in Little Rock drew national attention, both from the media and the national government. Despite President Eisenhower's belief that Governor Faubus would comply with the law,Footnote 32 on September 23rd he received a telegram from the mayor of Little Rock, Woodrow W. Mann, who emphasized the violent disobedience that was being fomented in the city:
The city police, together with the state police, made a valiant effort to control the mob today at Central High School. In the final analysis, it was deemed advisable by the officer on the ground and in charge to have the colored children removed to their homes for safety purposes.
The mob that gathered was no spontaneous assembly. It was agitated, aroused, and assembled by a concerted plan of action.
One of the principal agitators in the crowd was a man by the name of Jimmy Karam, who is a political and social intimate of Governor Faubus, and whose wife is now with the Governor's party at the Southern Governor's Conference. Karam has a long record of experience in strike-breaking, and other activities such as he engaged in today.
The manner in which the mob was formed and its action, together with the presence of Jimmy Karam, leads to the inevitable conclusion that Governor Faubus at least was cognizant of what was going to take place.Footnote 33
The events in Arkansas led to a proclamation by Eisenhower ordering the persons engaged in willful obstruction of the effort to desegregate “to cease and desist therefrom, and to disperse forthwith.”Footnote 34 That order failed to end the mob behavior and the mayor sent a second telegram saying “the immediate need for federal troops is urgent.” In the telegram he described the scene in Little Rock and begged for federal intervention:
The mob is much larger in numbers at 8AM than at any time yesterday people are converging on the scene from all directions mob is armed and engaging in fisticuffs and other acts of violence. Situation is out of control and police cannot disperse mob I am pleading to you as president of the United States in the interest of humanity, law and order and because of democracy world wide to provide the necessary federal troops within several hours. Action by you will restore peace and order and compliance with your proclamation.Footnote 35
Later that day Eisenhower sent in federal troops to maintain order and to “take all appropriate steps to enforce any orders of the United States District Court … for the removal of obstruction of justice in the State of Arkansas with respect to matters relating to enrollment and attendance at public schools in the Little Rock School District.”Footnote 36 The presence of federal troops controlled the crowds outside the school but did not end the resistance. There were regular bomb threats in the school, the children were subject to regular harassment by classmates, and soldiers escorted the black children through the halls and to and from school. The state government persisted with acts of defiance, including passing various forms of legislation that would forbid integration and adopting a constitutional amendment urging the state legislature to do whatever it could to resist the “unconstitutional” holding in Brown.Footnote 37 Faubus ratcheted up his own attack on Brown, asserting that it was not the law of the land.Footnote 38
It was in this context that the case began its route to the US Supreme Court. The president had already sent in federal troops to control mob violence and to protect the nine black children. Violence had diminished but was not absent, and the threat of it was constant. State government officials had openly challenged the legitimacy of both a Supreme Court decision and the enforcement actions taken by the executive and had taken steps to remove the control of the school district from the hands of local boards. Based on this situation, the school board petitioned the federal district court for a two-and-a-half-year delay in implementing desegregation, and the district court granted the delay.Footnote 39 The NAACP tried to bypass the Court of Appeals and go directly to the Supreme Court but that effort was denied. The Court of Appeals reversed the district court but stayed its judgment until the Supreme Court could act.Footnote 40 Recognizing that the 1958 school year was about to begin, the chief justice called a special term of the Court to hear oral arguments. It is important to recognize that while this case was moving quickly through the federal court system, events on the ground were continuing “and day-to-day reactions at the local level substantially affected the shape and tone of the Supreme Court opinion.”Footnote 41
Because of the events that unfolded over the 1957–1958 school year, and in particular the actions taken by the governor and state legislature, Dennis Hutchinson argues that the “most important feature of the [oral] argument was the change in the Court's perception of the central issues of the case.”Footnote 42 When the case reached the Supreme Court, there was a package of state legislation awaiting the governor's signature that was in direct contradiction with federal law as represented by the Brown decision. In the district court, the question had simply been whether a delay was justified given the public opposition to the school board's “good faith” efforts. By the time it reached the Court of Appeals the question was “whether local opposition to desegregation, which caused the disruption, was a valid justification for delay under Brown II.” But by the time of oral arguments before the Court, Chief Justice Warren suggested that the real question was “whether the acts of any agency of the State of Arkansas are preventing [these children] from exercising their constitutional rights.”Footnote 43
The determined effort to thwart the Court continued even after the Court issued its per curiam opinion on September 12, 1958, upholding the Court of Appeals, and while the Court was preparing its longer opinion. Faubus signed the antidesegregation legislation sitting on his desk and promised the citizens of Arkansas that segregation would continue under the new laws. The Court was aware of all of this as it circulated drafts of an opinion.Footnote 44
The facts on the ground in Cooper v. Aaron provide support for the Court's claim of judicial supremacy. To read the mayor's telegrams and the firsthand accounts of the young people involved in the caseFootnote 45 is to get a sense of the genuine sense of crisis and fear that had developed and had been fed by the actions of state officials.
Condition 2: Support of the Executive Branch
The fact that President Eisenhower sent troops into Little Rock before the Court's decision in Cooper is an important one. It was not Cooper's claim of the supremacy of federal law and of the Court's interpretation of the Constitution that forced Eisenhower's hand, but rather the violent and direct challenge to federal supremacy that came from Arkansas that led to his action. There was a Supreme Court decision to enforce in Brown v. Board of Education, but that decision, while groundbreaking, made no assertion of judicial supremacy. In fact, it has been well documented that the Court's recognition of its own weakness and lack of enforcement power tempered the claims made in that decision and, more importantly, in Brown II when it assigned the remedial decision-making to the lower federal district courts.Footnote 46
During the course of the year of crisis before the case reached the Court, Eisenhower made a number of statements asserting the supremacy of federal law, equating the Supreme Court's decision with supreme federal law, and announcing his constitutional obligation to enforce the supreme law of the land. On September 5, 1957, he sent a telegram to Governor Faubus acknowledging the governor's earlier telegram “requesting my assurance of understanding of and cooperation in the course of action you have taken on school integration.” Eisenhower seemed to be making his point about national supremacy in the first paragraph, noting that the integration plan had been “recommended by the Little Rock School Board and ordered by the United States District Court pursuant to the mandate of the United States Supreme Court.” He went on to say that as president, he had taken “an oath to support and defend the Constitution of the United States” and that the “only assurance I can give you is that the Federal Constitution will be upheld by me by every legal means at my command.” He concluded by noting that the Department of Justice was investigating the events in Little Rock and reminding Faubus about who was really in charge: “You and other state officials—as well as the National Guard which, of course, is uniformed, armed and partially sustained by the Government—will, I am sure, give full cooperation to the United States District Court.”Footnote 47
The next week, after Eisenhower and Faubus met, another press release announced the meeting and made another assertion of federal supremacy. After praising Faubus's “constructive and cooperative attitude,” Eisenhower concluded by saying that he was “sure it is the desire of the Governor not only to observe the supreme law of the land but to use the influence of his office in orderly progress of the plans which are already the subject of the order of the Court.”Footnote 48 And indeed, in his own statement right after the meeting, the governor appeared to accept this conception of the law. He said that he had “assured the President of [his] desire to cooperate with him in carrying out the duties resting upon both of us under the Federal Constitution” and he identified Brown as “the law of the land” that “must be obeyed.”Footnote 49 Later, Eisenhower wrote in his diary that Faubus had told him in that meeting “that everybody recognizes that the Federal law is supreme to State law.”Footnote 50
After Eisenhower ordered federal troops into Little Rock, he addressed the nation about his actions and again made claims about the supremacy of federal law, and in particular, of the Court's interpretation of the federal Constitution. He noted that “demagogic extremists” had “prevented the carrying out of proper orders from a Federal Court,” and that he had ordered them to cease and desist and they had not. “Whenever normal agencies prove inadequate to the task,” he said, “and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President's responsibility is inescapable.” In a passage that some have claimed was Eisenhower's attempt to distance himself from the Brown decision, the president reminded people that “the Supreme Court of the United States has decided that separate public educational facilities for the races are inherently unequal and therefore compulsory school segregation laws are unconstitutional” (emphasis added). But, he said “our personal opinions about the decision have no bearing on the matter of enforcement; the responsibility and authority of the Supreme Court to interpret the Constitution are clear.”Footnote 51 This could be read as an attempt to shift the blame to the Court, but it must also be read as an assertion of the supremacy of the Court's decision. Eisenhower concluded with an appeal to the rule of law and the importance of compliance with federal law, arguing that the “very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and insure the carrying out of the decisions of the Federal Courts,” and that “unless the President did so, anarchy would be the result.” Finally, Eisenhower argued that what was at stake implicated our national security. He said “it would be difficult to exaggerate the harm that is being done to the prestige and influence, and indeed to the safety, of our nation and the world” and that “our enemies are gloating over this incident and using it everywhere to misrepresent our nation.”Footnote 52
The executive branch also encouraged the Court's assertion of judicial supremacy in its oral argument in Cooper v. Aaron. Solicitor General Rankin rejected the school board's characterization of the case as a battle between two equal sovereignties in which they were stuck in the middle, saying, “There is nothing to that stuff, and that's all it is.” He discussed the notion of the Union established by the outcome of the Civil War, the failure of the Articles of Confederation, and the importance of the Supremacy Clause in making clear that national law is supreme.Footnote 53 Rankin argued the school board had an obligation to educate people about the law: “At least they could come forward and say: we'll tell the people that the Supreme Court has spoken; that's the law of the land; its binding; we've got to do it; the sooner we do it the better; let's get started at it.”Footnote 54 The solicitor general ended with advice to the Court about how it should respond to the violent opposition to its opinion. Referencing the words “equal justice under law” inscribed on the Supreme Court building, Rankin said:
It is there as a reminder of the great objective of this Court in all of its decisions. Now in the gravity of this new challenge to constitutional rights, I respectfully suggest that each time that it becomes an issue the Court must say, in a manner that cannot be misunderstood, throughout the length and breadth of the land: There can be no equality of justice for our people if the law steps aside, even for a moment, at the command of force and violence.Footnote 55
Given the extent to which the executive branch had supported the Court and its authority in this case, it is not surprising that the justices rejected the delay requested by the school board, and asserted the claim that they did about federal judicial power. To permit the delay would have undermined the legitimacy of the actions already taken by the president and “would signal to every other Southern state that adopting a policy of violence at the first hint of desegregation was the road to legal salvation.”Footnote 56
Condition 3: The Constitutional Issues at Stake
The legal arguments presented in briefs by parties before the Court often have an impact on the development of the Court's own arguments in its opinions.Footnote 57 Consequently, it bears mentioning the arguments made in the briefs and oral arguments by the two main parties to the case as well as by several parties that attempted, unsuccessfully, to be heard as amicus curiae.
The brief from the school board was cautious about challenging the Court's authority but did raise the arguments being made by other state officials as a reason for their request for delay. Thus, while petitioners themselves were suggesting their willingness to abide by the Brown decision, they introduced as evidence for their need for delay the challenges to national supremacy being raised by the governor and legislature. The district court had specifically found that “the state has acted in opposition to the process of integration,” “that there was chaos, bedlam and turmoil from the beginning,” and that all three branches of the state government had been engaged in the resistance, which included “making statements vilifying federal law and federal courts.”Footnote 58 Furthermore, the brief noted that “vicious circulars were distributed condemning the District Court, the Supreme Court of the United States and the school officials who recognized the supremacy of federal law.” The brief went on to say that “masters of rhetoric” told residents of Little Rock that “the Governor of Arkansas could legally prevent integration and suggested that the shedding of blood was permissible in order to maintain segregation,”Footnote 59 and that a columnist for the local paper “constantly supports the doctrine that the Fourteenth Amendment was not legally adopted and that the decision of this Court in Brown v. Board of Education is not the law of the land.”Footnote 60
Petitions to be heard as amicus curiae raised directly the challenge to federal legal supremacy. Although the Court denied these requests, their petitions became part of the record that the Court reviewed. The Arlington County chapter of the Defenders of State Sovereignty and Individual Liberty took the most aggressive stand, challenging the legality of Brown. They argued that they ought to be heard because other parties would not adequately represent their position (presumably, this was because the school board was taking the position that they accepted Brown but had been hampered by resistance of state officials). The group's position was that no Supremacy Clause issue existed because state law “is the rule of decision in the Federal Courts unless the Constitution and the laws of the United States provide or require otherwise” and that the US Constitution and US laws did not cover the public schools.Footnote 61 They argued that the Brown decision was itself contrary to federal law because to the extent that Congress had legislated in the matter of education, it had deferred to the states as to how they managed school assignment.Footnote 62
The NAACP's brief emphasized the dangers this case posed for the survival of the rule of law and reminded the Court of the outright defiance of federal authority that was transpiring. The brief said that the case had “now become a national test of the vitality of the principles enunciated in Brown v. Board of Education.” It warned that the court's acceptance of Arkansas's resistance “would subvert our entire constitutional framework.” “In short,” argued the NAACP, “this case involves not only vindication of the constitutional rights declared in Brown, but indeed the very survival of the Rule of Law. This case affords this Court the opportunity to restate in unmistakable terms both the urgency of proceeding with desegregation and the supremacy of all constitutional rights over bigots—big and small.”Footnote 63
In oral arguments, it was clear that the Court was troubled by the actions taken by state officials, and as mentioned earlier, had decided that the question before them had changed from what the school board and district court thought it to be. (Did Brown II permit the remedy of delay in these circumstances?) The school board had introduced the actions taken by state government in order to make the case that they needed the delay in order to find out whether the state would allow them to pursue their desegregation plan. The justices returned repeatedly to questions about the timing and purpose of the state government's actions. Justice Black asked about the “Sovereignty Commission” that had been established, apparently to make statewide decisions related to the desegregation of the schools, and about the legislation sitting on the governor's desk awaiting his signature. Was any of this legislation designed “to set up a plan to abide by the Court's decree” or did it “provide for obedience” to that decree? The attorney for the school board was forced to admit that it did not.Footnote 64 Several justices emphasized the importance of the Supremacy Clause issue to the case. The school board attorney argued that “this conflict has resolved itself, as we see it as a school board, into a head-on collision between the Federal and State governments.” Justice Black responded, “But there is not any doubt about what the Constitution says about that, is there?” The attorney conceded that there was not but argued that the school board should not be the one required to resolve it.Footnote 65
Another argument by the school board could have been perceived by the justices as an invitation to make a strong statement about federal judicial power. The board's attorney (and the brief) argued that the Court had not been clear in Brown II about what exactly was expected of school boards and that their quest for delay was in part justified by the uncertainty surrounding the meaning of the decision. Chief Justice Warren pursued this argument, asking whether, if the Court were to “clarify the things that you think are now obscure in the minds of the involved people of Arkansas … that will take the place of the delay?” The attorney had to admit that they sought delay regardless of whether the Court clarified what was expected.Footnote 66
Thurgood Marshall, attorney for the NAACP, also urged the Court to send a message to Arkansas, and the nation, about the Supremacy Clause and the rule of law. He argued that “this ‘battle between sovereigns’ was decided by the Constitution when it was adopted.” The school board attorney had been hesitant to tell the Court exactly what the pending state legislation entailed in terms of defiance of national authority, but Marshall was only too happy to provide the details. He argued that permitting the delay “says that not only the school board and the state can and should submit to mob violence and threats of mob violence, but that the Federal Judiciary likewise should do so.”Footnote 67 He ended by appealing to the Court to consider the children in this case, noting the hardships endured by the black children, but saying what really worried him were the lessons being learned by the white children:
I don't know of any more horrible destruction of principle of citizenship than to tell young children that, those of you who withdrew, rather than go to school with Negroes, those of you were punished last year, the few the school board did punish; come back, all is forgiven, you win. … I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future.Footnote 68
In sum, through briefs and oral arguments, the Court was presented with a stark choice in deciding Cooper. It was being asked by both sides to clarify its decision in Brown (in other words, a summary affirmation or reversal was not contemplated by either side), and to do so in a political context in which the federal executive had already acted to enforce Brown and where state government actors were in open defiance of the executive and the Court. The respondents and the federal government were asking the Court to assert federal supremacy in this area. The state legislation contradicting Brown lay on the desk of the governor daring the Court to act. These arguments clearly point to the “transcendent questions” that Alexander and Schauer identify as justifying judicial supremacy claims.Footnote 69
Condition 4: The Court's Recognition of Its Weakness
There is nothing on the record to suggest that the Court's assertion of judicial supremacy in Cooper was a reflection of arrogance about judicial power. Instead, the record suggests that from the beginning of the Court's consideration of segregation cases, it was painfully aware of the significance of its decisions, the likely resistance in the South, and its own inability to do anything by way of enforcement other than trying to persuade others to comply. The decision by the members of the Court to write opinions to which all could agree was a reflection of this recognition by the Court.Footnote 70 It is all the more notable that the Court maintained that unanimity as long as it did and against the resistance that it got, when we consider that the norm of unanimity on the Court had largely broken down by the time the Court decided Brown and Cooper, giving way to a more individualistic approach by justices to saying what the law is.Footnote 71
In the Cooper case in particular, the evidence supports the notion that the Court was concerned not just for its own institutional legitimacy (although this was certainly part of the concern) but also generally for federal supremacy and for the more abstract notion of “the rule of law.” The first draft of the Court's opinion was written by the very new Justice Brennan, and it contained several acknowledgments of the Court's weakness in this dispute. The first nine pages of the draft outlined the facts of the case, describing in detail the actions of the school board, the courts, and the state government since the Brown decision. Having outlined the facts, Brennan got to the question as the Court had come to define it through oral arguments: “the significance of this decision [Brown] under our federal system.” Since the school board has claimed that state officials “have spread doubt and confusion” about its meaning, Brennan wrote that “it may be well to recall some elementary constitutional propositions which are no longer open to question.” He then cited Marbury v. Madison and the line “It is emphatically the province and duty of the judicial department to say what the law is” and went on to argue that the Court's interpretation of the Fourteenth Amendment in Brown was the supreme law of the land and that state officials were bound to comply with it.Footnote 72
Brennan then turned to the school board's argument that the courts did not have the “practical power to deal with opposition such as is here encountered.” “It is true,” he wrote, “that the judiciary does not have an enforcement arm to effect compliance with its decrees. But ordinarily the community is law abiding and voluntarily abides by judicial determinations. This is the great strength of our constitutional government under law. It is the extraordinary situation when violence and disorder prevent enforcement of federal decrees. When this occurs and state and local officials cannot or will not control the situation, it becomes the ultimate duty of federal power, ordinarily exercised by the Executive Department, to enforce the decrees of federal courts.”Footnote 73
Brennan's admission of the court's weakness was removed from later drafts, because other members of the Court feared that it would expose the Court's weakness and undermine the strength of the opinion. Similarly, over the course of multiple drafts, the tone of the opinion changed, as the Court sought to put forth its strongest argument.Footnote 74 The other substantial change was that Brennan was dropped as the author of the opinion and it was agreed that the opinion would emphasize the unanimity and commitment of the Court by having all of the justices sign the opinion (a move that Lucas Powe Jr. calls “unprecedented”).Footnote 75 Justice Douglas's notes on the case say that this move was “first suggested by Justice Harlan and later enthusiastically endorsed by Justice Black.” “The reason for that proposal,” wrote Douglas, “was that some newspaper articles suggested that perhaps the three new members of the Court who had come on since 1954 had other views on the matter and the Court was being browbeaten by Chief Justice Warren.”Footnote 76
The strong emphasis in the opinion on the rule of law and federal judicial supremacy can also be explained by the belief of some of the justices, and in particular Felix Frankfurter, that the audience that had to be persuaded were Southern lawyers, law professors, and judges who were committed to the rule of law. He believed that framing the opinion in that language would be most persuasive and would provide them with cover in urging compliance in their communities. They would not have to endorse desegregation but could instead justify such efforts as being based on their commitment to law and order. Frankfurter felt so strongly about this that he broke the unanimity norm by filing a separate opinion that laid out this argument in more detail despite the objections of his colleagues. In deference to his colleagues, he did not, however, read his opinion at the time the Cooper decision was announced.Footnote 77
Argument
If Cooper represents a legitimate assertion of judicial supremacy, does it necessarily follow that other assertions of judicial supremacy are equally valid and persuasive? Do all modern assertions have equally compelling contexts that might justify the Court's claims? To fully answer those questions, one would need to subject other claims to similar scrutiny, considering how compelling the facts of each case are, the constitutional questions at stake, the arguments presented to the Court, the Court's motives in making the assertion, the degree to which the Court was in agreement or in conflict with the interpretation of a coequal branch of government, and the likely consequences of a decision by the Court if the supremacy of the law was in doubt. That detailed analysis is beyond the scope of this article but a preliminary application of those standards to several other cases where the Court asserts judicial supremacy suggests that the answer is that some of the other modern claims to supremacy lack the urgency and legitimacy of Cooper.
Table 1 applies the criteria used in this analysisFootnote 78 to justify Cooper's supremacy claim to four later cases where the Court makes a similar assertion. The criterion Facts refers to the factual context of the case. Was there actual or threatened violence in defiance of the law? If not that extreme, was there some sense of crisis that could be heightened or unresolved unless the Court asserted the supremacy of its interpretation? Values relies on the argument presented by Alexander and Schauer that judicial supremacy aids the protection and promotion of transcendent constitutional values that must be protected from majoritarian excess. This category is made difficult by the fact that Americans often dispute which values are transcendent or whether they apply in particular situations. In Cooper they were multiple: supremacy of federal law, equal protection of the laws, and “the rule of law.” This analysis assumes that although the parameters of this criterion are vague and disputed, it is possible to imagine legal disputes that involve conflicts that do not threaten transcendent constitutional values and thus make judicial supremacy claims less legitimate.
Table 1: Evaluating Judicial Supremacy Claims
Institutional Support asks whether, in asserting its supremacy, the Court is acting alone or in the face of alternative interpretations from the other branches, or whether it is being encouraged by another branch to make such a claim. In Cooper the president was the first to assert both the supremacy of federal law and the Court's supremacy in constitutional interpretation. In circumstances like Cooper it lends legitimacy to the claim, making it less about institutional arrogance and more about the rule of law. Finally the Outcome criteria are a consequentialist evaluation. What would the consequence be if the Court's decision were not perceived as the “final word”? Could the dispute be resolved in the political process without undermining the rule of law? Was an outcome inevitable regardless of the Court's response? If, as I argue here, judicial supremacy claims are sometimes legitimately made by the Court but should be made rarely, then asserting them without these conditions gives credence to arguments that judicial supremacy claims are evidence of institutional arrogance rather than commitment to constitutionalism and the rule of law.
Two of the cases evaluated under this framework, Powell v. McCormack Footnote 79 and City of Boerne v. Flores Footnote 80 differ from the Cooper case along virtually every dimension. Each of them involved a challenge to the Court's authority by a coequal branch of government (Congress), not the states. Consequently, no issue about the supremacy of federal law was at stake but instead questions of the separation of powers, and in neither case was the other branch of government taking the side of the Court. Indeed, in City of Boerne the president was allied with Congress. The facts in Powell (the refusal by the House to seat a controversial black congressman accused of misconduct) are more compelling than in Boerne (the effort of a church to expand in a historic district in Texas) but in neither case can one argue that there was violence and lawlessness or any perception of constitutional crisis or impasse. Nor in either case did lawyers arguing before the Court question directly its authority to say what the law is. Instead, in Powell the House's lawyers relied on an argument that the Constitution gave Congress exclusive power over its members, that the case was moot (because by the time it got to the Court, Powell had been reelected and seated) and, if not moot, that the Court's own decisions regarding jurisdiction and the political question should control this case.Footnote 81
In Boerne the congressional justification for the Religious Freedom Restoration Act (RFRA) was that the Court had been wrong in its decision in Employment Division v. Smith Footnote 82 when it made it easier for state and local governments to burden the free exercise of religion with generally applicable laws. In this sense, the Act itself was a challenge to the Court. But the Smith decision had been decided by only a five-person majority with vigorous dissent from four justices arguing that the Court had reduced the protection of religious freedom. An almost unanimous Congress and the president agreed with the dissenters on this. Congress contended that it also had authority to interpret the Fourteenth Amendment and to pass legislation to protect the rights of citizens under section 5 of the amendment, particularly if the effect of the law was to increase the level of rights protection rather than to diminish it.Footnote 83 Given these other realities it is difficult to see why the Court felt compelled to insist that it was the “ultimate interpreter of the Constitution”Footnote 84 or that “when the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.”Footnote 85 Both cases could easily have been decided as they were, without such assertions. And in each case, had the Court decided otherwise it is difficult to see any particularly disastrous outcomes. Powell was already seated. RFRA would have returned the law to the test that the Court itself had used before Smith. A more detailed assessment of the conditions of these cases is necessary before more certain conclusions can be drawn, but on their face, neither of these cases suggests any compelling need for the Court to insist on judicial supremacy.
United States v. Nixon Footnote 86 and Baker v. Carr, Footnote 87 two other modern assertions of judicial supremacy, present more complicated cases, where some, but not all of the conditions in Cooper appear to be present. The sense of constitutional crisis and the direct challenge to the Court's authority are present in Nixon. Nonetheless, it seems clear that even without the Court's decision, Nixon would have been impeached and the crisis resolved. To a considerable extent the transcendent value of rule of law—particularly the notion that no government official is above the law—was at stake in the case, but following the constitutional impeachment process would also have upheld that value. One could argue that the Court and Congress were allied in this dispute, and that consequently the Court gave Congress the constitutional support it needed to impeach and convict a president without it being seen as simply a partisan process.
In Baker v. Carr the facts on the ground could not be interpreted as violent or a crisis requiring the strongest possible statement of law's supremacy. The malapportionment of the state legislature of Tennessee had been going on since the turn of the century. By the 1960s there is little doubt that the question of equal voting rights and fair representation, particularly for disenfranchised blacks in the South, rose to the level of a transcendent value for much of the country, and while neither Congress nor the president had taken any initiative on addressing malapportionment prior to Baker, both institutions were broadly supportive of the decision after the fact.Footnote 88 A case can also be made that the Court was justified in asserting its constitutional authority in this case because it was persuaded that there was no political solution to the problem of malapportionment in state legislatures since those who benefited from it had no incentive to change it. The Court's intervention was urged because the democratic process was not working and could not be expected to work to correct the injustice.Footnote 89
A careful look at the conditions in Cooper v. Aaron demonstrates that the Court's claim of judicial supremacy was both understandable and perceived by the executive branch as well as the Court as necessary for the resolution of a crisis. A more cursory look at other modern judicial supremacy claims by the Court suggests that not all cases are so clear. Defenders of judicial supremacy should be challenged to justify the legitimacy of these assertions in cases like Powell and Boerne rather than relying on the far easier case of Cooper v. Aaron. What “transcendent questions” were at stake? To what extent were the needs for “settlement and stability” advanced by the decisions?Footnote 90 The Court, too, ought to be expected to provide such justifications when it makes such assertions. In a system of separated powers, broad and unsupported assertions of judicial supremacy will be and should be challenged, even as the parties to the dispute must be expected to comply with the law as it applies to them.
