The Unpublished Dissent in Cooper v. Aaron

"Of all the tribunals this is the one that should stick to the rules."


Professor Josh Blackman has a nice new paper, The Irrepressible Myths of Cooper v. Aaron, which canvasses the drafting history of one of the Supreme Court's most important decisions about its own authority. Cooper is where the Supreme Court declared itself to be "supreme in the exposition of the law of the Constitution," and held that its own judicial decisions are "the supreme law of the land," alongside the Constitution itself. As Josh argues, the Supreme Court may have thought it had pressing practical reasons to make these declarations, but it did not do a good job justifying them.

I learned several new things from the paper, one of which was that despite the opinion's famous unanimity, Justice Clark had at some point drafted a dissent. Here is a key paragraph:

I see no reason why we should set aside all procedural rules in this case and still require other litigants to comply with the same. The case should be considered in the regular course not by forced action. Of all the tribunals this is one that should stick to the rules. To do otherwise is to create the very situation that the Constitution prohibits, the existence of a preferred class.

But apparently Justice Clark did not ever circulate the dissent and just ended up joining. Still, I think this succinctly highlights the danger of courts that demand procedural regularity from litigants while being less willing to live up to it themselves.

If you want to learn much more, Josh has helpfully put all of the papers he used online. And if you want more from me, my own somewhat critical take on Cooper is here.

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  1. “Cooper is where the Supreme Court declared itself to be “supreme in the exposition of the law of the Constitution,” and held that its own judicial decisions are “the supreme law of the land,” alongside the Constitution itself”

    Nothing like being able to grant yourself power.

    1. Actually Prof. Baude pointed in his paper that some people find that, “Cooper thus seems to recognize that the usual saying should be reversed: the Supreme Court is what the Constitution says it is.”

    2. The conceit, at least, is that the Constitution granted them this power.

      The executive over the years has made some fairly broad proclamations about the executive power too, one that is sometimes argued to be solely up to their discretion.

  2. Which is why the Supreme Court is where everyone knows all temporal power in the US is located.

    1. And the intemperate power is in the White House.

    2. Close enough. And that, as we all know, is why Merrick Garland is not today a Supreme Court justice.

    3. What I find interesting is that the Supreme Court, like all courts, is a reactive institution that lies motionless by default. The Courts can only act in the political realm when they are called on by the state or an individual, at which they are put into motion. The legislature and executive are proactive institutions that can actively engage in the political arena through the creation and execution of law. In short, if if no one asks the courts to step-in, then they cannot step-in.

      If you accept that as a starting premise, then the question would be how has a reactionary body, which can only act when called upon, obtained so much influence in the political realm? The courts would lose a substantial amount of power if individuals would resolve disputes between themselves, thus not needing adjudication from the state. If those who lost in the legislative arena accepted their lose and moved on, rather then immediately going to the courts and therefore involving that institution.

      I don’t pretend the issue is actually that clear as our country has of course had instances where the Court’s involvement was essential for the protection of minority rights. But, I recognize that a litigious society that speaks in the language of “rights” is a recipe for a collective action problem in which every interest can go to the courts to vindicate their rights in a given situation, while collectively that means every interest on every issue is setting and keeping the courts in motion.

  3. It often seems I’m only of one mind when trying to make sense to someone else, and not always then. At least he didnt hard delete his opinion.

  4. If the opinions of the Supreme Court are the law of the land, then Plessy v. Ferguson was the law of the land.

    Not only that, but attacks on Plessy v. Ferguson were attacks on the Constitution.

    The Cooper v. Aaron doctrine could better be called the Stephen Douglas doctrine because, when debating Abraham Lincoln, Douglas said that Lincoln “makes war on the decision of the Supreme Court, in the case known as the Dred Scott case. I wish to say to you, fellow-citizens, that I have no war to make on that decision, or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not.”

    1. The Supreme Court having the final say as to what the law is does not require that no one can disagree with it, nor that it cannot revisit it’s own decisions.

      Law of the land is not the same as revealed religious dogma.

      1. But changes in the constitution require an amendment, don’t they?

        By that logic, changing Plessy v. Ferguson would have required a constitutional amendment. After all, the decision was the Law of the Land!

        Not only that, but anyone who asked the Supreme Court to overrule Plessy v. Ferguson would be asking the Court to overrule the Law of the Land – and surely someone who argues that way can be sanctioned for wasting the court’s time with frivolous arguments.

        Unless we say that Supreme Court decisions are binding on everyone except the Supreme Court justices themselves…and that *does* seem somewhat like religious dogma – or, rather, it sounds like Leninist “democratic centralism” where ordinary Party members have to accept the party leadership’s most recent decisions even if they contradict prior decisions.

        1. You are mixing up Constitutional interpretation with the Constitution.

          The law of the land is not the same as the Constitution’s language. That’s why the Supreme Court said the first one not the second.

          1. Of course the Stephen Douglas view denies that the law of the land is the same as the constitution’s language, because to Douglas, the opinions of the Supreme Court take priority over any Constitutional language to the contrary.

    2. “Plessy v. Ferguson was the law of the land.”

      And, blacks didn’t simply ignore it and have sit-downs in segregated schools or something. They went to the courts, eventually the Supreme Court, to ask them to change what the courts deemed was the “law of the land.” The claim here was that the government was illegitimately refusing to follow Brown. The Supreme Court didn’t say it could not go to the Supreme Court and ask them to change the opinion in some fashion.

      Lincoln’s argument as to that opinion was also somewhat narrow. He argued that it took some time for opinions to in effect become firmly established & that this didn’t happen yet for Dred Scott. In part, Lincoln argued (his Cooper Union speech providing some details) that the Taney opinion was based on mistaken history. I’m not sure if he personally did so, but there also was the idea that much of the opinion was dictum.

      Douglas’ statement also is a bit curious for a Democrat, especially given Jackson’s treatment of McCulloch v. Maryland and probably other opinions.

      1. Lincoln said this in his first inaugural:

        “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.”

        1. “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

          Abe certainly nailed our current situation.

          1. What he said!

      2. What would be wrong with sitting-in at a segregated school – unless you argue that sitting in at a diner is also wrong?

        The Stephen Douglas doctrine violates the law of non-contradiction, since the Supreme Court often gives a decision one way at one time and a decision the other way at another time. It can’t be the law of the land both times. It’s the classic question – was the Supreme Court wrong *then* or is it wrong *now*? To say it’s right both times – which is what is entailed by calling Supreme Court decisions the law of the land – is to simultaneously affirm A and not-A, a failure of elementary logic.

        1. Where did Douglas claim anything about right or wrong?

          1. “that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not.”

            1. Right. He said its decisions were binding, not that they were always correct.

              1. Binding because they’re the law of the land.

                1. Right again. “Binding” because “law of the land”, or “law of the land” because “binding” if you prefer it that way around, they are equivalent. But, still, not necessarily correct.

                  1. Let’s see…Dred Scott was the law of the land, binding on every good citizen…but the decision might still be wrong…but the only way to remove the binding force of the decision would to overrule it, or to have a constitutional amendment.

                    By this logic, if the Republicans were good citizens, they would have abandoned their position that Congress could forbid slavery in the territories, and respect the Dred Scott ruling until they got better judges or a constitutional amendment.

                    Which historically they didn’t do, hence they were bad citizens, QED.

                    1. In what world do people not get to dissent as to the value of the law of the land?
                      If Nazis get to march, citizens get to argue against the current Constitution.

                      It’s like you’re some dictator who has just discovered a republic and can’t quite understand how it works.

                    2. “In what world do people not get to dissent as to the value of the law of the land?”

                      I said that even under your interpretation – the Stephen Douglas view – the Republicans could have sponsored a constitutional amendment or replaced the Justices.

                      I am saying that that, contrary to you and Senator Douglas, this wasn’t the Republicans’ only option.

                      For example, they could pass a law against slavery in the territories, which they promised to do, and did, Dred Scott be darned.

                    3. I do like how you’ve decided repeating Senator Douglas is the way to go. Even as you argue well beyond what he did about the patriotism of dissent.

                      You sound like you’re taking the Andrew Jackson view of the law of the land yourself.

                      If only there were some middle ground between the Supreme Court not being supreme, and jailing everyone who doesn’t like the current law.

                    4. “jailing everyone who doesn’t like the current law”

                      Remind me where I said that, because perhaps my memory is flawed.

                    5. By this logic, if the Republicans were good citizens, they would have abandoned their position that Congress could forbid slavery in the territories, and respect the Dred Scott ruling until they got better judges or a constitutional amendment.

                      Which historically they didn’t do, hence they were bad citizens, QED.

                      Sorry, not jail them, just tar their actions as illegitimate. You don’t specify a punishment for such sedition.

                    6. That was the doctrine of Stephen Douglas and of Cooper v. Aaron.

                      Can you see any daylight between the two?

                    7. You might also observe that I began the passage you quoted with the phrase “By this logic…”

                    8. Oh, I know you don’t believe this – you just think anyone who doesn’t agree with you must believe this.

                      As I’ve said, you are excluding any middle ground between your muddy multi-supremacy and believing dissent is illegitimate.

                    9. No, I’m saying anyone who agrees with Cooper v. Aaron must believe this.

                      I haven’t seen any daylight between the Stephen Douglas position and the Cooper v. Aaron position.

                    10. I agree with Cooper v. Aaron, and I do not believe this.

                      Legally supreme is not the same as morally or factually supreme. The Supreme Court is not defining reality, only legality.

                    11. My point is I see no daylight between Cooper v. Aaron:

                      “…the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution…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 “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution….

                      “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

                      And Stephen Douglas:

                      “I wish to say to you, fellow-citizens, that I have no war to make on that decision (Dred Scott), or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not.””

                    12. ‘Binding law’ does not mean it brooks no dissent nor attempts to change it’s current operative interpretation.

                    13. George Bernard Shaw would appreciate this wrestling match.

                    14. I think I admitted the existence, under the Douglas Doctrine, of a safety valve in the form of sponsoring a constitutional amendment to overrule a bad decision, or replacing the Supreme Court justices with justices who will overrule the decision.

                      But the Republicans didn’t wait for either of these eventualities, and Lincoln said he didn’t consider himself automatically bound by Supreme Court decisions (pending constitutional amendment or overruling) as the Douglas/Cooper doctrine would suggest.

                    15. Allowing Constitutional amendments as a safety valve is just damming this strawman ‘Dougls’ argument you ginned up with a faint solutions.

                      Your argument requires that under current law, lobbying the Supreme Court to change it’s mind is illegitimate.

                      I think the disconnect is that you are conflating legal authority with ideological authority.

                      Everyone gets to argue for their own ideas of what the Constitution means, and how it should operate legally. But you don’t get to act like your idiosyncratic Constitutional beliefs are how our country currently operates. Depending on your flavor of Constitutional beliefs, that’s a great way to get arrested or worse.

                      Unless, of course, you are the majority of the Supreme Court.

                    16. “Your argument requires that under current law, lobbying the Supreme Court to change it’s mind is illegitimate.”

                      No, my argument is that the Cooper v. Aaron decision is illogical and involves the Court in contradictions.

                      Of course they try to simultaneously claim that their decisions are the law of the land *and* that you can ask them to change their mind.

                      I’m saying this doesn’t make sense.

                      But like you suggest – good, bad, they’re the ones with the guns.

                    17. Court opinions do not act like legislated laws. Yet they are still the law of the land.

                      No one else thinks there is any contradiction here.

                      Perhaps it is less that you’ve destroyed the legal establishment with your logic, and more that your semantics are a bit too rigid?

                    18. Are you saying I might be wrong? Anything is possible.

                      Of course, it’s also possible that *you’re* wrong, and it’s most certainly possible that your rhetoric is getting a tad overheated.

                    19. And if you check the original post, you’ll see that Cooper v. Aaron doesn’t exactly have 100% backing from the “legal establishment.”

                    20. I’m not going to play agument ad populari games with you.

                      But I will note that your semantics about what ‘law of the land’ means seem idiosyncratic to you.
                      They are not even put forth by those who don’t care for C v. A.

                    21. Just one question – what’s the difference between “legislated laws” and regular laws?

                    22. I can’t seem to find a good definition of “legislated laws” in legal sources – perhaps the definition is idiosyncratic to you?

                    23. Have you heard of ‘common law?’

                    24. Have you heard of ‘common law?’

                    25. Law of the land includes things beyond legislated laws. Like regulations, judicial opinions, etc.

                      It has since the Magna Carta.

                    26. The term just sounded amusing – “legislated laws.”

                      Remember that you had to specifically apologize for bizarrely attributing to me some remark I never made about “jailing everyone who doesn’t like the current law.”

                    27. And of course law presupposes a legislator, whether Congress, or a common-law court (“judge-made law”) or God.

                    28. I think they’ve both thrown the hook now, Eddie, though I have to admit you played them longer than I thought possible.

                    29. They could have saved a great deal of time by replying to me and not to the voices in their heads.

        2. The sit-ins very well could be considered “civil disobedience,” which would not challenge the holding of Cooper v. Union, but be seen as a moral approach to an unjust law. Or, they could be a means to uphold what was seen as the law in place after Brown and its progeny that state authorized segregation (state action present here) was unconstitutional.

          Pre-Brown, making a case for that regarding schools would be somewhat harder. Anyway, Plessy was referenced & as noted, the general policy was to accept that the Supreme Court had the power to state the law & that meant that Thurgood Marshall et. al. had to convince it to change its mind.

          The Supreme Court, like Congress determining what is “necessary and proper” ala McCulloch v. Maryland, determines the right result based on all the things available to them at the time. Law develops over time in that respect and courts very well can determine that a result that was correct in 1896 was not the right result in 2018. And, even if they were wrong then, it doesn’t mean it wasn’t the “law of the land.” It can very well — like a bad call by an umpire — be the law without being correct.

          1. What do you think of the Wisconsin Supreme Court defying the US Supreme Court over the Fugitive Slave Act?

          2. “like a bad call by an umpire”

            I’m no expert, but I don’t umpires write opinions which are studied by other umpires and by players.

            An umpire’s decision is what Lincoln said of a Supreme Court decision: “binding in any case upon the parties to a suit (strike call) as to the object of that suit (strike call)”

            1. The reference was in respect to you saying the Supreme Court couldn’t be the “law of the land” both times even though they said two different things. An umpire can make two different calls for the same pitch in the same at bat & still both calls are the official “law of the game.”

              The issue here in my eyes is not some “pure forms” ideal of what the “law of the land” really is, but the official law of the land. Sarcastro made this basic point.

              The interpretation of baseball rules in practice likely in various instances references past precedents of how umpires called specific plays & umpires themselves also are likely influenced by them, including when they are in training. So, that part is probably off too.

              Ableman v. Booth was referenced. How much it was “defying” the Supreme Court is unclear given the novel questions involved. If it was, they were breaching their duty as to follow existing federal law as much as if they decided contra to McCulloch v. Maryland that the state could tax a federal bank.

              1. The baseball example fits with Abraham Lincoln’s remarks (quoted by Joe_JP) – the umpire can decide “the law of the case” but doesn’t have the power to make others (or non-parties in Lincoln’s telling) interpret the rule the same way the umpire did.

                In Ableman v. Booth, the Wisconsin court ignored orderes from the U. S. Supreme Court – in effect picking up where the Virginia high court left off in the Martin v. Hunter’s Lessee litigation.

                1. There is an authority involved in taking baseball game appeals. The appeal authority there can have binding judgments on certain types of calls & future umpires need to follow them. Umpires are judged in some fashion in how they follow such official determinations.

                  I’m familiar with the case & it has various moving parts and developments. To the extent it was resisting orders from the USSC, at some point it was probably violating its responsibilities under Art. VI. I don’t really want to try in a single comment to summarize the various issues in this complicated case more so.

                  1. I actually didn’t know that baseball develops a body of precedent – that is interesting information, thanks.

      3. “Lincoln’s argument as to that opinion was also somewhat narrow. He argued that it took some time for opinions to in effect become firmly established & that this didn’t happen yet for Dred Scott.”

        But in the case of Plessy v. Ferguson, the Supremes frequently reaffirmed that decision.

        Which poses no problem for me, because it simply means they were doubling down on the stupid.

        But repeated reaffirmations would seem to make the decision even more law-of-the-landish, under the judicial supremacist interpretation.

        1. Yes, so segregation had a stronger hold in let’s say 1930 than Dred Scott had in 1860.

          OTOH, the doctrine wore down over time from the 1890s and the 1950s, the Supreme Court in each case determining constitutional meaning. By the time Brown was decided, Plessy was much weaker. And, to the degree the Supreme Court itself decided the specific question as applied to schools, by then, there was more cases against it than for it.

          This doesn’t solve the problem but what the Plessy reference gets you is unclear.

          1. Whether Supreme Court opinions are the law of the land.

            In what sense was Plessy v. Ferguson the law of the land under the Stephen Douglas doctrine?

            At the time of the decision, was it “binding on you, on me, and on every other good citizen whether we like it or not,” in Stephen Douglas’ words?

            1. Plessy v. Ferguson itself was still binding precedent until the Supreme Court said otherwise but the state the of law regarding segregation as a whole developed in a significant fashion, particularly involving the specific question regarding education.

              Binding still allows one to go to court and legally challenge it as well and the Supreme Court can determine, partially because various things changed since then warranting the change, that new precedent should be made.

              1. Plessy is Schrodinger’s judicial decision – both the law of the land and not the law of the land, depending on what time you check.

                The same goes for all sorts of decisions the Supreme Court later overruled.

                1. Good lord, Eddie, even Popes change their mind.

                2. Now you are not getting Schr?dinger either.

                  1. You mean there isn’t a *perfect* analogy between a law of physics and a joke about the operation of the Supreme Court?

    3. Going straight to Plessy is reductio ad absurdum. Each branch of the government interprets the part of the Constitution that applies to itself, for itself. That Plessy was decided the way it was, when the word “citizen” isn’t actually defined anywhere in the Constitution, and courts are in existence to resolve disputes, shouldn’t mean that an attack on Plessy is an attack on the constitution…just judicial supremacy.

      But I see where you’re coming from, it’s an eye of the beholder problem…Heller is the awesomest decision ever and final to conservatives, and Row is the most awesomest decision ever to liberals and “super-duper precedent”, when all decision are, in the end, as transient as politics lets them be.

  5. Wait, is that the same Justice Clark that made a deal with Lyndon Johnson that he’d step down from the court if Johnson named his idiot son Ramsey as Attorney General, so Johnson could appoint Thurgood Marshall?

  6. Some random musings…. The law, as I understand it, is composed of two parts, substantive law and procedural law. It would seem the “0th” law, offering the firmest legal footing, would be both substantive and procedural. The court seems to imply the constitution cannot be a self-interpreting document, consisting of both substantive law and procedural law. Instead, the court sets itself apart from the constitution, in violation of the constitution.

    Kinda the same move Jesus made by claiming to be the Messiah, and the supreme interpreter of the law. His interpretation of the 0th law, to love God with all one’s strength, and your neighbor as yourself, was both a logical foundation for substantive law and at the same time a very visceral means to enable propogation and practice thereof.

    The above comments are intended to be positive and not normative. Of course, as writing is a persuasive exercise, there will always be normative implications, and for that I apologise. If I had more time, I would try and to revise, with greater nuances, into a more agnostic disposition. In keeping with the theme of tentative writing, I’ll just hope anyone who might be offended would be understanding.

  7. A little more to the point, it would be nice if the courts viewed interpretation as more a peer review exercise, rather than a heirarchical — buzzword alert — regime.

    1. Courts do engage in a form of peer review- they view persuasive authority from other courts all the time! And that certainly can influence their decisions. I rarely have a case (well, certainly appellate cases) that doesn’t involve persuasive authority from other courts.

      However, courts must have hierarchical authority by the very nature of common law and an appellate review system. There is certainly a question of tension between the issues of “getting it right” (infinite reviews, “who will guard the guardians”) and “finality,” but the entire premise of our system is that you get a shot (trial court) and then, if you think that court made a mistake, you get a “hierarchical” review (appeal). Sometimes, you even get another review of the appellate court. 🙂

      1. OK, but the Supreme Court is “Supreme” over inferior federal courts*, not over the country

        *And, as to federal questions, supreme over state courts (source: US Supreme Court)

        1. I’m not sure what your point is, or if you are making one? But, of course?

          States have … wait for it … their own courts. And they have appellate courts. And they have a supreme court (which may or may not be named the supreme court- see, e.g., New York, where a supreme court is atrial court, and the court of appeals is the highest appellate court (above the intermediate appellate courts).

          Was there a point there? Are you really stating that federal and state court are different? On a legal blog?

          1. My asterisked point was simply stipulating, in my own grudging way, that the US Supreme Court is supreme over the state courts on federal questions, as the US Supreme Court explained in Martin v. Hunter’s Lessee.

            That, and supremeness over inferior federal courts, is as far as the US Supreme Court’s supremeness extends, it doesn’t, IMHO, mean supremacy over the country as a whole.

            1. Okay. Still not getting what your point.

              Like, does the Supreme Court regularly get up in the morning and say, “Hey, y’all, let’s mess with Texas. From now on, there will be no cool hats allowed in Texas. Done and Ordered!”

              No. The Supreme Court decides cases and controversies that are brought to it. Now, because of the hierarchical nature of our court system, and the way common law works, the Supreme Court’s resolution of legal issues is binding on the courts below it (federal courts and, to the extent it is a federal law issue, state courts). That’s how it works. And, of course, to the extent that people (including the executive and legislature) want their actions to be lawful, they tend to be mindful of what the law is.

              1. I’m saying the US Supreme Court is supreme over other courts, not over the country.

                For example, President Jefferson pardoned the victims of the Sedition Act, because he believed that Act was unconstitutional.

                If the Supreme Court was supreme over the country, it could presumably have un-pardoned the defendants, who were convicted at trials presided over by several of the Court’s own justices.

                1. Okay. So what you seem to keep repeating is that the Supreme Court doesn’t decide cases that aren’t brought before it.

                  Or maybe that just because they have the word “Supreme” in Supreme Court, they aren’t, um, like Galactic Supreme Commanders, or Diana Ross, or something.

                  1. This is a discussion of judicial supremacy, an actual doctrine from an actual Supreme Court decision.

                    The Supreme Court supports judicial supremacy, but thank you for your amusing comments anyway.

                    1. “This is a discussion of judicial supremacy, an actual doctrine from an actual Supreme Court decision.”

                      No. Go back and read the comment you replied to. Helpful hint- it was my comment. It didn’t mention the supreme court, or judicial supremacy, or whatever bizarre thing it is that you are trying to say.

                      FWIW, I do believe that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That’s not judicial supremacy. To the extent that the Supreme Court (federal) has become more important in the past few decades, it isn’t because the Court has expanded its role; it is because other branches, most emphatically, have diminished their own.

                      Of course, it is the rubes that constantly complain about black robed tyrants in one breath, while in the very next breath demanding that every single issue is one of constitutional importance. Whatever, man. Consistency is for losers, right?

                    2. “Whatever, man. Consistency is for losers, right?”

                      Against whom are you arguing?

                    3. As loki points out, the ‘judicial’ part of judicial supremacy is a key limit. Otherwise, we’re in Superman takes over the world territory.

                    4. I have some difficulty getting your point.

                      The article linked in the original post says (p. 15):

                      “At the tail end of Cooper v. Aaron, after disposing of the situation in Little Rock, the Supreme Court established two principles: judicial supremacy and judicial universality. Under the former, a simple majority of the Supreme Court can manifest the “supreme law of the Land.” Under the latter, a Supreme Court decision is binding on all parties in similar cases.”

                      I’m suggesting these doctrines are wrong, because they attempt to make the Supreme Court supreme over the whole country, not just over lower courts.

                    5. Arghhh. And I am not getting your point, at all.

                      So, let’s try this. I have a case pending in front of my state supreme court. Once they rule on the issue, that become the “supreme law of [my state]” That law will be “binding on all parties in similar cases [in my state].” That’s totally normal, and uncontroversial.

                      That doesn’t endow the state supreme court with magic powers to zoom around the state and smack down, with frumious anger, anyone they think is violating their pronouncements. Instead, it means that the lower courts (trial courts and appellate courts) will follow the legal principle of the state supreme court. It means that state officials will depend on that ruling; to the extent that they do not follow the ruling, then they can expect a lawsuit, and a trial court quickly imposing the rule that was previously announced. That’s it!

                      There’s nothing magic, or special, or even that interesting about this doctrine. It is, quite literally, how the law works. The only difference with the (federal) Supreme Court is that it is federal law, which includes the Constitution. I really feel like you think you’re making some important point, that I just don’t see.

                    6. The Douglas/Cooper doctrine goes beyond what you’ve said.

                      Let’s see if I can explain it another way.

                      Douglas and the Cooper court said that, when a public official takes an oath/affirmation to support the Constitution, (s)he is taking an oath/affirmation to support whatever constitutional interpretation the US Supreme Court comes up with (presumably the most recent interpretation).

                      I claim that this is wrong.

                      For example, if the President believes a criminal statute is unconstitutional, he can and should pardon violators, even if the US Supreme Court said the law is constitutional.

                      But, you see, if the President swore/affirmed that he would uphold the Court’s constitutional interpretations, then such a pardon would be contrary to his oath of office.

                      Likewise if the President vetoes a statue on constitutional grounds despite a Supreme Court decision saying that sort of statute is constitutional, the President is violating his oath of office.

                      Which *is* magical thinking, in my mind.

                    7. Dude, you could not be more wrong. And I can tell by the two examples you just gave.

                      The pardon power is (almost) plenary. So, the executive can pardon because he thinks the person is innocent, or because he thinks the law is unconstitutional, or because he thinks the person has suffered enough already. Whatever, man. It’s the executive’s decision.

                      Same with the veto. Executive can veto for a good reason, a bad reason, or no reason.

                      You seem to keep confusing a normative view of the law (someone thinks the law is good, or bad, or unconstitutional, or whatever) with the descriptive status of the law at the time. You also really don’t have a good grasp of either separation of powers, or cases and controversies. But, again, this isn’t basic conlaw.

                      Now that I understand your point, it’s even more wrong.

                    8. I agree with you, the Supreme Court doesn’t.

                      You are entitled to disagree with the Supreme Court.

                      After all, their opinions aren’t the supreme law of the land.

                      If the President had actually taken an oath to uphold the Supreme Court’s constitutional interpretations (which is what the Cooper court supposes to be true), then it would be flat-out perjury for the President to pardon someone on constitutional grounds if the Supreme Court had upheld the law.

                      The only reason you’re right and the Supreme Court is wrong is that the President *doesn’t* take an oath to uphold the Supreme Court’s interpretations. Thus he gets to disagree with the Supreme Court and act accordingly.

                    9. No.

                      It is the supreme law of the land.

                      So, let’s try and follow this. Seriously, please try.

                      The Supreme Court says, “X.” But the other two branches say, “Y.” What happens? Well, a number of different things could happen.

                      a. If it’s a federal law, then the other two branches just pass a different law and overrule the Supreme Court. Think of the Lily Ledbetter fair pay act.
                      b. If not, then they can do something that violates the ruling, and take their case to the courts. At some point, they could persuade the Supreme Court to modify or reverse the “wrong” ruling.
                      c. Or, you could amend the Constitution with regards to X/Y.
                      d. Or, you could get into constitutional hardball. Removing jurisdiction of the Court, court packing, see if the Court can enforce their order, and so on. “That’s a nice judicial system y’all got there. Be a shame if something happened to it.” Luckily, we haven’t really gotten to that point.
                      e. Alternatively, if this is intolerable, amend the Constitution to make the Legislature supreme, like the UK and certain states. I have a feeling that people might not like that either.

                      I understand you are engaging in sophistry (using “oath” and “supreme” in ways to buttress your argument while ignoring what they actually mean). to arrive at your pre-ordained conclusion, but it betrays a staggering lack of knowledge or desire to learn.

                    10. By the way, I’m done now. This is truly basic stuff. If you don’t want to try and learn, don’t bother.

                      I do, strangely, want to listen to Ms. Diana Ross and the Supremes now, so there’s that.

                    11. “You seem to keep confusing a normative view of the law (someone thinks the law is good, or bad, or unconstitutional, or whatever) with the descriptive status of the law at the time.”

                      I have no idea what you’re referring to. You seem to like attributing absurd positions to me, getting indignant about the position I supposedly hold, and piling on with the “lol ur stoopid” rhetoric.

                    12. Again, I’m not sure why you insist on piling on the abuse, as if that makes your case stronger.

                      The Cooper decision said that when a public official promises to uphold the Constitution, (s)he is promising to uphold the Supreme Court’s (most recent) interpretation of the Constitution.

                      No amount of straw-manning or personal abuse can change that.

                      And if you disagree with the Supreme Court, that’s fine. Because their decisions are not the law of the land.

                    13. I think I see the logic behind your abusive rhetoric.

                      It is said that if your factual case is weak, you focus on the law.

                      But if your factual *and* legal case is weak, you get red-faced and pound on the table, in hopes that people will take you more seriously.

                    14. Wow. You don’t even know what you don’t know, do you?

                      To the extent that people criticize Cooper, it’s not for the completely made-up reasons that you are suggesting. It’s for two separate and divergent reasons.

                      The first has to do with the rationale behind the decision w/r/t nullification. I don’t particularly feel like going into that, but this isn’t a *federal* right, even if it existed. So your continued use of example regarding the President are more than misplaced.

                      Second, a more subtle critique has to do with the way that the Supreme Court decides cases. And this is in two parts- the idea that the case is only binding on the parties before it, and the idea that the Court should make more limited findings. While I think that the second (but not the first) might have some merit, pace Solum, neither of these have to do with what you keep saying. It’s a jurisprudential issue. The reason I have been so dismissive is, and I will say this in all-caps so that you get this-


                    15. Dude, are you OK? It’s not normal to get this excited.

                      If the straw men dancing in your head are getting you this upset, you need to take a deep breath and calm down.

                      I’m very sorry I replied to your post – I had no idea it would get you this upset.

                    16. Seriously, it’s not worth the aggravation. Just let it go.

                    17. To emphasize – if I’d thought that I’d be making you this angry by replying to you, I certainly would not have done it.

                      Be well.

    2. As someone tangentially related to scientific academia, let me tell you – peer review has it’s share of problems.
      If it’s clear legitimacy you’re after, I’d advise looking elsewhere.

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