Judge Barrett Refuses To Accept the Mythicized Account of Brown

You can't talk about the Court's strength in Brown, without acknowledge its impotence in Cooper.

|The Volokh Conspiracy |

Generations of law students are taught about the majesty of Brown v. Board of Education. As the story goes, Chief Justice Warren was able to craft a narrow, unanimous opinion, to ensure the opinion would be widely accepted. And, with Brown, the Court finally overruled Plessy and the separate-but-equal doctrine. Most casebooks do not describe what happened next. Most students do not learn about Brown v. Board of Education II. Most students do not learn about the massive resistance. Most casebooks do not include  Cooper v. Aaron.

The truth is far more complicated. Chief Justice Warren was able to finagle a unanimous opinion that said very little. It didn't overrule Plessy. It didn't require immediate desegregation. The majority decision allowed the lower courts to supervise desegregation with "all deliberate speed." And the standoff at Central High School in Little Rock, Arkansas demonstrated that the federal courts, standing by themselves, were feckless. Indeed, after the Court decided Cooper v. Aaron, school districts simply shut down rather than comply with court orders. (See my article, The Irrepressible Myth of Cooper v. Aaron). The Court's assertion of judicial supremacy was met with silence. This decision, better than any other, reaffirms that the Court is the least dangerous branch.

But judicial nominees do not dare recite this actual history. During his first hearing, Judge Kavanaugh repeatedly brought up the mythicized version of Brown. Even when he was not asked about Brown. (He also repeatedly brought up the unanimous U.S. v. Nixon decision, which was a prelude to his Vance dissent.) Over and over again, he praised Chief Justice Warren for reaching a unanimous decision. Kavanaugh certainly knows the true impact of Brown. But he wouldn't say it, because the myth signals the right virtues. Here is how Kavanaugh described Brown during a colloquy with Senator Grassley:

But Brown v. Board, as I've said publicly many times before, the single greatest moment in Supreme Court history by—in so many ways; the unanimity that Chief Justice Warren achieved which is a—just a great moment; the fact that it lived up to the text of the Equal Protection Clause; the—the fact that it understood the real world consequences of the segregation on the African American students who were segregated into other schools and stamped with a badge of inferiority.

("Lived up to the text"?! Come on.  The text speaks of equal protection, not equal treatment. The opinion did not engage the text at all. And it affirmatively rejected history.)

Judge Barrett refused to buy into this mythicized account of Brown. I encourage you to watch her colloquy with Senator Leahy. It runs from 9:41 through 13:50. (All things considered, I think Leahy is still one of the most effective Democrats on the committee; he has not lost a step.).

First, Leahy reminded Barrett that Judges Gorsuch and Kavanaugh said that the President would have to follow the Supreme Court's judgment.

SEN. LEAHY: Now, I asked you last time what Justice Barrett would do if a President or even a Senator did not follow a Supreme Court decision. You declined. You said the question may come before you. I then asked you if the Supreme Court would have the final word. You stated the Supreme Court would have the final word as far as the lower courts are concerned. That surprised me, and it concerned me. I'll tell you why. I asked Justice Gorsuch and Justice Kavanaugh those questions. I asked them what happens, and they made it clear that a President cannot refuse to comply with a court order, and the Supreme Court's word is the final word on that matter. Justice Gorsuch and Justice Kavanaugh said that. So I would ask you this. Do you agree a president must follow a court order, and the Supreme Court's word is final, or is the Supreme Court's word only final as far as the lower courts are concerned?

Barrett's original comments were exactly right. The Constitution does not give the Court the power to order the President. Perhaps the Court could assert that power. But it is an expansion of authority. I am not even sure the Constitution gives the Supreme Court absolute authority over the lower courts, but vertical stare decisis is a debate for another day.

In response, Judge Barrett segues, and explains that Gorsuch and Kavanaugh repeated the platitude that no one is "above the law." But she explains that this platitude is just a platitude. No man is above the law, but not all men are subject to the same laws. The Constitution grants the President certain powers, privileges, and immunities, that regular people lack.

JUDGE  BARRETT: Senator, I'm glad to have the opportunity to clarify from our conversation. First, I know that both Justices Gorsuch and Kavanaugh said that "no man is above the law," and I agree with that.

Next, Judge Barrett goes where other nominee would not. She highlights how feckless the courts actually are:

JUDGE  BARRETT:  But I conversed with Senator Lee yesterday about Federalist 78, which says that courts have neither force nor will. In other words, we can't do anything to enforce our own judgments. And so what I meant in the conversation with you is that as a matter of law, the supreme court may have the final word, but the Supreme Court lacks control over what happens after that. The Supreme Court and any federal court has no power, no force, and no will, so it relies on the other branches to react to its judgments accordingly.

She is 100% correct. The Court issues its judgments, but relies on others to enforce them. Everyone knows this fact to be true. But I do not recall a judicial nominee acknowledging this constraint on the courts. (Please email if I missed anyone).

Senator Leahy was disturbed by this comment. He then recounts a great story where he had lunch with Hugo Black during the early 1960s.

SEN. LEAHY: I remember as a young law student having lunch, our honor society had lunch with members of the Supreme Court. I sat with Justice Hugo Black. He told me what happened with Brown v. Board of Education. The Court knew that was going to be a very, very tough case, and what did they do? They waited until they had the unanimous opinion, because they knew that the President would have to, and the Congress would have to enforce their law. So let me ask you this. Of course the supreme court has no army. They have no force, but they do have a force of law, and is a President who refuses to comply with a court order a threat to our constitutional system of checks and balances?

Leahy echoed the mythicized version of Brown. But Barrrett will not accept this mythicized account. She explains that the massive resistance illustrated the weakness of Brown. She specifically referenced Cooper v. Aaron. And she managed to namedrop Orval Faubus from memory. You cannot cram that fact. She knew it on her own.

JUDGE  BARRETT: Senator Leahy, I think the example of Brown is a perfect one in the sense that Supreme Court and Brown held that segregation violated the Equal Protection Clause. That was the law, but as you know, there was resistance to that decision, and so it wasn't until the national guard came in and forced Governor Faubus to allow desegregation that it could happen because the Supreme Court couldn't do so itself, and in Cooper v. [Aaron]

Leahy interrupts again, and asks if the President can ignore a court order.

SEN. LEAHY: I understand that, but they made the order. And could a president—if a President refused to follow what they said, could that be a threat to our constitution form the government?

Judge Barrett refuses to accept the premise.

JUDGE  BARRETT: Well, as I said, the Supreme Court can't control whether or not the President obeys.

Once again, she is right. We would hope that the President would follow a Supreme Court judgment, but the Supreme Court has no control over that matter.

Alas, Judge Barrett took one misstep at the end. She recounted the common myth that President Lincoln ignored Chief Justice Taney's order in Ex Parte Merryman

JUDGE  BARRETT: Abraham Lincoln once disobeyed an order during the Civil War of a circuit court. So a court can pronounce the law and issue a judgment, but it lacks control over how the political branches respond to it.

Alas, she is wrong on the last part. President Lincoln never ignored an order from Chief Justice Taney in Ex Parte Merryman. Seth Barrett Tillman made this case, and I have yet to see anyone respond. Here, one Barrett can learn from another.

I am proud of Judge Barrett. She must have known this answer would create some vulnerabilities for her. but she gave it anyway. Moreover, this answer tells me a lot about how she understands the notions of judicial supremacy. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

One final fun fact. I recently re-watched the Dark Knight. There was a scene where the Joker, played by Heath Ledger, gets into a confrontation with members of a corporate board. One of the board members looked just like Pat Leahy. I googled it. It was Pat Leahy! He is apparently a huge Batman fan. He had cameos in Batman Forever (1995), Batman & Robin (1997), the Dark Knight (2008), the Dark Knight Rises (2012), and Batman v. Superman: Dawn of Justice (2016).

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  1. “Kavanaugh certainly knows the true impact of Brown. But he wouldn’t say it, because the myth signals the right virtues.”

    Dude. This was you just two days ago when you were fawning over her “self-sacrifice:”

    “I am truly impressed by her character. I hope she can show more of her virtue throughout the remainder of this hearing.”

    So it’s okay to make yourself look like a martyr to show virtue but not okay to praise a common understanding of a landmark decision to show virtue?

    Do you have any idea what virtues even are?

  2. Moreover, this answer tells me a lot about how she understands the notions of judicial supremacy. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

    In this I agree. She will be a fine SCOTUS justice for many, many years.

  3. “Judge Barrett refuses to accept the premise.”

    No, she refused to answer his question. She dodged it.

    1. She answered it correctly. If a President or anyone else refuses to follow an Supreme Court order the Court has limited ways to coerce compliance. They could probably hold the person in contempt, levy fines and possibly order someone locked up, but they have no force with which to effect those orders, the US Marshals are part of the Justice Department not the Judiciary. Maybe Justice Barrett could get her gun and go down to 1600 Pennsylvania Avenue and take the President into custody?

      1. SEN. LEAHY: I understand that, but they made the order. And could a president—if a President refused to follow what they said, could that be a threat to our constitution form the government?

        Judge Barrett refuses to accept the premise.

        JUDGE BARRETT: Well, as I said, the Supreme Court can’t control whether or not the President obeys.

        He asked, quote, “could that be a threat to our constitution form the government?” and she did not answer that, she dodged it. It is a simple yes/no question.

        1. And the answer is “no”, because the president’s ability not to enforce the judiciary’s orders is a deliberate part of that constitutional form of government.

      2. “She answered it correctly.”

        The only way I see to regard Barrett’s reply as responsive to Leahy’s question is to take it to imply something like: “Senator, there would be no threat to our constitutional form of government, because in your scenario nothing unconstitutional has yet occurred.”

        Is that what you had in mind? If not, how do you manage to construe Barrett’s utterance as responsive to Leahy’s question?

        1. Per the transcript above his formation of the question in terms of a “threat to our constitutional form of government,” was a change to the original question of “Do you agree a president must follow a court order, and the Supreme Court’s word is final, or is the Supreme Court’s word only final as far as the lower courts are concerned?”

          She answers this question. What comes next from the Senator seems, to me at least, an attempt to ask the same question again in order to get a different answer. He never states an interest other than the original one in his first question. As such, her staying on that topic and sticking with the answer she gave is not a dodge… his rephrasing is a blatant attempt at a “you said Trump is bad!!!” gotcha moment.

          Had he started the line of questioning under the idea of a constitutional issue rather than one of SCOTUS power… he may have gotten a different answer from her.

          She was clear with her answer to the question she was asked. Sen. Leahy then starts to get murky with his language… that’s on him.

  4. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

    So the argument is that the President really is above the law, at least in regard to obeying court orders? And you think a this is just wonderful?

    What is the remedy? A toothless impeachment? I’d treat the President like anyone else who disobeys a court order, and throw his ass in jail if needed.

    1. “So the argument is that the President really is above the law, at least in regard to obeying court orders? And you think a this is just wonderful?”

      The “law” includes the Constitution, which in fact is superior to other forms of law. The President is granted certain powers and immunities by the Constitution, and that supercedes what an ordinary litigant might be required to do.

      If a judge orders me to appear for a hearing, and I don’t, he can issue a bench warrant for my arrest. Do you seriously believe he could do that to POTUS?

    2. Judges and prosecutors enjoy absolute immunity from civil suit for any misbehavior in their roles, even if blatantly willful. If a judge takes a bribe to send you to jail, and he sends you there for ten years, you have zero recourse against him. Except to hope that he is prosecuted.
      Does that make the judge “above the law.”

    3. You and what army? The judicial branch has no power. It cannot throw anyone — or their ass — in jail. It can order the executive branch, i.e. the president, to throw the person in jail, but nobody can make the executive branch, i.e. the president, obey that order.

    4. I had a completely different interpretation, bernard11. I feel you need to interpret that sentence with this additional context: Moreover, this answer tells me a lot about how she understands the notions of judicial supremacy. She does not accept the mythical account of the all-powerful Supreme Court. This answer bodes well for the future.

      I thought Professor Blackman meant that Justice Barrett would tend to be very circumscribed in her application of judicial power. Meaning, a Justice Barrett will not ‘make new law’ and turn SCOTUS into an unelected legislature. Nobody wants that.

      We won’t know – I meanreally know – Justice Barrett’s judicial philosophy for a few years.

  5. Technically, the Supreme Court cannot order anyone (other than a lower court) to do anything, because its jurisdiction is purely appellate. A district judge would have to order the president to do something, and the SCOTUS could affirm it.

    1. “jurisdiction is purely appellate.”

      Fake news.

    2. You need to read up on Supreme Court original jurisdiction.

      If you’re going to try for the pedantic ‘technically’ comment, make sure you get it right.

      1. What original jurisdiction does the Supreme Court have that the president would be a party to?

        1. Technically, the Supreme Court cannot order *anyone* (other than a lower court)

      2. And technically the Supreme Court can issue writs too. The Supreme Court has held this to be a constitutional rule quite recently, and it’s also permitted by federal statute.

  6. This exchange was the most insightful of the entire hearings.

    Thank you Blackman for the presentation.

  7. And her answer goes to why it’s so dumb to elect someone like Trump to be president—because the president must be trusted to properly manage the executive branch including the Department of Justice. So Trump shows the limits of the president because he was elected to shake things up—and the president simply doesn’t have the power to shake things up. So his tariffs have been an unmitigated disaster and his wall is 3 miles of fence in 4 years. It’s really comical how ineffective Trump has been on everything but judicial appointments which he outsourced almost immediately to McGahn and McConnell. In fact Trump relinquished his best leverage over McConnell when he outsourced judicial appointments.

  8. Seems kinda like Blackman wants to live in a monarchy.

    1. No he just wants out of a fourth (or fifth) tier law school

  9. I wonder if anybody thinks the court could have ordered Eisenhower to federalize the Arkansas National Guard, or to send the 101st to Little Rock?

    If the President has to obey all court orders, that effectively places the power of the Presidency in the hands of the court.

    If the President were to refuse a court order to, say, send the military somewhere or to veto a bill or something, presumably the remedy would be for Congress to decide whether or not to impeach the President for the violation.

    1. We’ve had a lot of activist judges, but I haven’t heard of an activist judge ordering a war or a veto. There’s one judge, Douglas who tried to *stop* a war, but Douglas got slapped down by other judges.

      One might hope that a judge who orders a war or a veto would get overruled and maybe impeached before a “crisis” emerged.

      1. If the judge’s activity were to go that far in such directions, I would agree. But the examples were more about the power structure, not the actual court orders themselves… they seemed extreme to make the illustration stark.

        If the court orders POTUS to do something that is within their authority to do… let’s say POTUS loses a court argument and is now ordered to turn over documents. Rather a far cry from being ordered to veto a bill or start a war. BUT… the issue remains. Who watches the watchman? Who makes POTUS, the head of the enforcement branch of the government, do anything? It would seem that the only recourse is Congress acting to support the SCOTUS by impeaching the POTUS. But short of that… what?

  10. I suppose technically correct is the best kind of correct on a legal blog, so certainly, Lincoln, strictly speaking, didn’t disobey Chief Justice Taney.

    But suppose, simply for the sake of argument, that the Chief Justice was acting within his proper authority in issuing his habeas corpus order for Mr. Merryman. If we grant the premise, then the conclusion follows that the President, in order to see that the laws are faithfully executed, would have had to make sure the order was obeyed.

    On the other hand, if Lincoln legitimately suspended the writ of habeas corpus – as his defenders claim – then Taney had no authority and the law didn’t require the enforcement of his decrees.

    That’s the basis of this particular debate, and it was decided on the battlefield and the “court” of public opinion, not the federal courts.

    1. It’s also important to note that a lot of scholars worship Lincoln and want to say and do anything possible to try and make it look like he wasn’t a lawbreaker, which he most certainly was. You can argue he broke laws in support of a just cause (although some of the laws he broke, such as jailing newspaper publishers, don’t look so good to me), but he definitely disobeyed the law repeatedly.

    2. Yeah, after reading the article linked… Lincoln certainly sat on his hands instead of carrying out a legal duty. The Executive Branch, in all its forms, can operate how they like so long as it fits within the confines of the Constitution. If parties believe it has overstepped, they can go to court. They did and the court ruled that someone overstepped in carrying out orders issued from the Executive Branch. The judges order, while not listing Lincoln, became a charge to the executive branch. The full context of the order, as being a part 3 of an already explicit conclusion that the man should be set free, put limits upon Lincoln’s choices. He could act as he saw fit… so long as such actions were in an effort to carry out the order. Lincoln need not be named directly… it was already his job as POTUS to execute the law as understood by the courts. This order explained the law and now Lincoln, named or not, had swore an oath to execute his duties… which would now include setting this man free. He didn’t.

  11. I didn’t interpret Judge Barrett’s answer as saying the Supreme Court lacks the legal, de jure power to issue a document styled “order” to a President containing instructions on what to do. I read it as an acknowledgement that, not having direct command of an army or even a police force, the Supreme Court lacks the practical, de facto power to do anything if a President refuses to obey. And I interpreted Barrett’s answer as recognizing the difference between the two.

    1. Same… which made her seem much smarter than Sen. Leahy. That he was unable to follow what, I thought, was a rather clear statement of fact was… sad.

  12. ACB didn’t want to be baited into a debate during the confirmation hearings. However if she did, she could have turned it around. Suppose the court ordered Congress to do something rather than the President. What would Senator Lahey say about that?

    Suppose someone wins a judgement from a court. It requires an appropriation to pay the judgements, but the legislature fails to do that. That actually happens regularly. Should the court be able to order the Congress to pass it? Could the court order individual members or Senators to vote Aye or else go to jail? I think not. I think Senator Lahey would agree.

  13. And could a president—if a President refused to follow what they said, could that be a threat to our constitution form the government?

    Senator Leahy, it’s a threat to our constitution form the government every time a Supreme Court “justice” rules based on his or her personal desires, rather than on the written US Constitution.

    Let us know when you’re ready to dump Roe, Lawrence, Windsor, and Obergefell. Until then, you need to STFU about respect for our constitution form the government, because you clearly have none.

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