The Volokh Conspiracy

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The Unpublished Dissent in Cooper v. Aaron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.