The Volokh Conspiracy

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Can Cooper v. Aaron Save Roe v. Wade?

Abortion advocates appeal to one exercise of raw judicial power to save another exercise of raw judicial power.


On Thursday, Texas abortion groups filed a petition for certiorari before judgment in Whole Woman's Health v. Jackson. The groups argue that the Fifth Circuit has already signaled how it will rule, and arguments will not be held under December. Thus, there is no need to wait further.

I think this Hail Mary is unlikely to succeed. First, the posture of the case here is very similar to the posture of the case the Court ruled on earlier this month. WWH's cert petition faces the same jurisdictional hurdles that the emergency application faced. It would only take four votes to grant cert here, but it will take five votes to expedite consideration. I can't count to five. The same five Justices who denied the stay would likely deny expedition. Second, the timing works against WWH. I can't imagine the Justices are eager to take this case up at the same time as Dobbs–especially before the Fifth Circuit had a chance to rule. Third, the Justices are far more likely to take up the DOJ petition, which eliminates some (but not all) of the jurisdictional hurdles.

Still, this Hail Mary pass was probably a prudent move for WWH. Worst case scenario, the Court leaves the petition pending. And if the Court grants DOJ's petition, then the Court can also grant Whole Woman Health's pending petition. That case would present every viable path for relief.

Here, I will focus on one important argument presented by the petitioners.

It is a foundational principle of our federal constitutional system that "the federal judiciary is supreme in the exposition of the law of the Constitution," and States may not nullify federal rights through "evasive schemes" designed to foreclose federal judicial review. Cooper v. Aaron, 358 U.S. 1, 17–18 (1958). Had a State after Brown v. Board of Education, 349 U.S. 294 (1955), enacted a similar law authorizing private citizens to sue anyone integrating a school, there can be little question that this Court would have immediately stopped that act of lawlessness. That S.B. 8 seeks to frustrate the right to abortion rather than the right to equal protection cannot justify different treatment.

The citation to Cooper is appropriate given the relief WWH seeks. At present, there is only one judge who is part of the case. Still, the parties want the Court to "strike down" S.B. 8 and bind putative defendants who are not yet named parties. This exercise of judicial supremacy can only be supported by Cooper v. Aaron. Specifically, WWH invokes what I refer to as the principle of judicial universality: "the Supreme Court's constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases." True enough, Cooper asserted this power. But the Court has never since endorsed this proposition. With good reason. Such a sweeping assertion of judicial supremacy cannot be grounded in the Court's precedents–and don't even think of saying Marbury! Long before there was in irrepressible myth of Jacobson v. Massachusetts, there was an irrepressible myth of Cooper v. Aaron. One raw exercise of judicial power cannot save another exercise of raw judicial power.