Today in Supreme Court History

Today in Supreme Court History: August 28, 1958

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8/28/1958: Cooper v. Aaron is argued.

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  1. Again, misleading. August 28 was the argument over vacating the Eighth Circuit’s stay and the grant of certiorari. The actual merits, resulting in the reported decision, were argued on September 11.

    1. Either way, by this time the case was moot as President Eisenhower had sent in paratroopers to Arkansas to desegregate Central High School a year earlier! See also my symposium paper “Domestic Constitutional Violence” on the president’s legal authority to use military force inside the United States: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3317895

      1. Prof. Guerra-Pujol. If you ever decide to litigate and to retrieve the value of the takings from the lockdown, I have a budget for you. The lockdown was also not rational. The lockdown killed a lot of people unnecessarily.

  2. Prior to desegregation, the racial disparity in social pathologies was small. If the bastardy rate in whites was 5%, it might be 10% in blacks. Crime was 10% higher in blacks, mostly because of lack of police protection. Unemployment might 2% higher.

    After desegregation, and especially after the War on Poverty, the racial disparity went to 400%. For example, there are 4000 excess murders of blacks over the number expcted from their fraction of the population. It took the KKK 100 years to lynch 4000 blacks. Today, the feminist lawyer is achieving this mass murder each year. The lawyer profession is 100 time more toxic to black males than the KKK. KKK was in fact, a lawyer founded and run organization granted immunity for its extra-judicial killings, witnessed by hundreds, by the local prosecutor.

    Good job lawyer dumbasses, destroying the Black family after slavery, war, and discrimination failed to do it. Good job, lawyers, for your mass murder of black men, 100 times faster than the dreams of the vilest KKK racist, genocidal maniac.

    Here is the best achievement of the lawyer. Blacks are 12% of the population. They get 30% of the abortions. You killed a million black babies, lawyers.

    1. Sorry, lawyers. 18 million black babies, since 1973.

  3. They could have just said “we were serious about Brown v. Board, and the decision must be enforced.”

    But they had to take advantage of the innocence-by-association of the Brown case and proclaim that Supreme Court opinions – not the Constitution, but the Supreme Court’s interpretations of the Constitution – are the “law of the land.”

    This is the equivalent of Nixon saying “When the President does it, that means it’s not illegal.” It’s not exactly disinterested.

    And it applies in contexts outside of racial discrimination – it means that only the Supreme Court can challenge Supreme Court opinions. And the Supreme Court challenges its own opinions all the time when it overrules its decisions. It’s the law of the land until it isn’t.

    1. You need a final decision maker. And among the three branches, it seems quite clear who it should be.

      And Stare not being inviolate is not a bad thing.

      1. “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.”

        /Lincoln’s First Inaugural Address

        https://avalon.law.yale.edu/19th_century/lincoln1.asp

        1. Appeal to authority all you want, someone needs to be the final decider in interpreting our Constitution. Anything else is impracticable.

          1. Well, *in practice,* the President and Senate appoint replacement justices who overrule previous decisions, ergo the previous decisions were not “final,” and also ergo, it wasn’t the Supreme Court spontaneously overruling itself, but the elected branches picking new justices to make new rulings. So what happens to your theoretical “final” authority for the Supreme Court?

            And Jefferson pardoned people who the Supreme Court justices (riding circuit) held to be constitutionally convicted. And Congress refunded the fines.

            So I guess it’s *never* been as neat and tidy as your scheme indicates.

            1. And Congress apologized and paid compensation for the policies upheld in the Court’s “final” decision in the Korematsu case.

              1. And the Lincoln quote actually refutes your claim that your position is “quite clear.” If it was “quite clear” it would have been clear to Lincoln.

                So disagree with Lincoln if you wish, but you’ll have to abandon your claim that the issue is as clear cut as you assert.

                1. Lincoln can say wrong things, dude.

                  You’ve provided no way to prevent constant unpredictability in how the Constitution applies.

                  Will the First Amendment let me run this ad, or can it be banned? Won’t know till we sue! You can’t run a society with such unpredictability.

                  1. I said “disagree with Lincoln if you wish.” But you have to engage his arguments, not casually dismiss him with a hand-waving remark about “appeal to authority.”

                    I’m surprised that, on a *legal* blog, you’d be so contemptuous of authority and precedent.

                    1. This is not a serious comment. Recognizing that appeal to authority is a fallacy does not mean I have contempt for authority.

                      And Lincoln’s speech is not a precedent.

                    2. “Recognizing that appeal to authority is a fallacy does not mean I have contempt for authority.”

                      No, I said you can’t dismiss Lincoln’s argument, you actually have to rebut it with arguments.

                      “And Lincoln’s speech is not a precedent.”

                      It’s an authority you have to engage with, because if he was wrong, then *Dred Scott* was the law of the land, a result so shocking that the burden is on you to defend it.

                    3. If you don’t think Presidents are authorities who can be cited, you have the Supreme Court against you. From NY Times v. Sullivan:

                      “Although the Sedition Act was never tested in this Court the attack upon its validity has carried the day in the court of history….Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: ‘I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.’ Letter to Mrs. Adams, July 22, 1804, 4 Jefferson’s Works (Washington ed.), pp. 555, 556.”

                      https://www.law.cornell.edu/supremecourt/text/376/254

                      They cited a *private letter* from a President, and you say I can’t cite a public statement by a President?

                      Who am I going to believe, you or the Supreme Court?

                    4. And, yes, by refusing to debate Lincoln you’re showing contempt for him. Even Stephen Douglas debated Lincoln – and he, like you, cited the Supreme Court as the final authority on constitutional issues (which in this situation meant Dred Scott).

              2. “And Congress apologized and paid compensation for the policies upheld in the Court’s “final” decision in the Korematsu case.”

                It seems to me that SCOTUS’ power here is entirely negative. If they declare some action of the other branches unconstitutional, then it is, full stop. But if they decline to so declare, the other branches are still free to exercise their own judgment on the matter, for instance Andrew Jackson and the Bank of the US. SCOTUS declining to strike down a law or action doesn’t make it bullet-proof against the judgments of the other branches.

            2. Institutional finality does not mean that institution cannot revisit cases.
              It does mean you need to be careful about doing so willy-nilly.

              Yes, the pardon power is a narrow check on the Court as well. Another check is amending the Constitution. Yet another is changing statutes.

              But you cannot have a continual swirl of Constitutional interpretation that goes on forever. At some point you need to have a decider.

              As Justice Jackson said: “We are not final because we are infallible, but we are infallible only because we are final.”

              1. The Robert Jackson quote is from a *concurring* opinion and so it’s not binding even by your definition. It’s merely an appeal to authority. So it seems appeals to authority are OK in some circumstances.

                “But you cannot have a continual swirl of Constitutional interpretation that goes on forever.”

                Maybe not, but that’s what you get under your system, with the Supreme Court constantly changing its mind on the most fundamental issues.

                So the Supreme Court says unanimously at one time that a claimed right to same-sex marriage doesn’t even raise a substantial constitutional question, and at another time they say that it’s a constitutional right, and a county court can be led away in shackles for adhering to the Court’s previous unanimous opinion.

                So think of an argument which doesn’t count against your own side.

                1. county clerk, not county court

              2. Oh, goodness me, look at all the times the Supreme Court overruled itself:

                https://constitution.congress.gov/resources/decisions-overruled/

                So you can, in fact, have “a continual swirl of Constitutional interpretation that goes on forever.” The Supreme Court’s own decisions show it.

                1. What do you think I’m arguing? My thesis is that the Supreme Court as an institution, should be the final decider of constitutionality.

                  I’m making an institutional argument. I’ve said three times before this that I don’t think stare is inviolate. And explained how overruling cases does not upset reliance interests the way your no res judicata argument would.

                  You’re either trolling or too obtuse to be engaging with.

                  1. No, what you said was

                    “Institutional finality does not mean that institution cannot revisit cases.
                    It does mean you need to be careful about doing so willy-nilly.”

                    Then I showed that the Supreme Court was *not* careful about revisiting cases willy-nilly.

                    Then you said that “you cannot have a continual swirl of Constitutional interpretation that goes on forever.”

                    But I showed that this is precisely what you get under *your* scheme.

                    Your own justification fails under your own terms.

                    Obtuse, indeed.

                  2. “And explained how overruling cases does not upset reliance interests the way your no res judicata argument would.”

                    Are you claiming to defend “res judicate”?

                    Because my Black’s Law Dictionary has one of the definitions of res judicata as “[a]n issue that has been definitively settled by judicial decision.” The other definition has to do with preventing “the same parties” from re-litigating an issue.

                    So which definition are you using? Presumably not the second, because you’re talking about the alleged binding effect of Supreme Court opinions on -parties.

                    Or are you using the definition about “definitively settled by judicial decision?” Because you’ve acknowledged that a precedent does not necessarily “definitively settle[]” a judicial decision. Indeed, as I showed, it very often doesn’t.

                    Getting huffy won’t help you.

                    1. effect on non-parties.

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