The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In September, I questioned whether Cooper v. Aaron could save Roe v. Wade, and stop S.B. 8. And after argument in Whole Woman's Health v. Jackson, I worried that the Justices would cave to judicial supremacy. Thankfully, a majority of the Court did not go the way of the Warren Court. Alas, Chief Justice Roberts could not resist the temptation.
As a threshold matter, his four-page skeletal concurrence is woefully inadequate. Roberts is a brilliant attorney. But he offers only the most cursory response to Justice Gorsuch's analysis with respect to the clerks. He gets around Young by saying that later cases "recognize that suits to enjoin state court proceedings may be proper." (Justice Sotomayor calls the critical sentence from Young as "dicta"). But the cases Roberts cite do not involve clerks. And none of these precedents quietly modified Ex Parte Young. If Roberts had the goods, he would have shot back at Gorsuch. But he fired blanks.
I think the crux of the Roberts opinion comes in the final paragraph:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court's rulings. It is, however, a basic principle that the Constitution is the "fundamental and paramount law of the nation," and "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, "[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery." United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
Marbury said absolutely nothing about states "nullifying" Supreme Court decisions. The quoted sentence from Marbury concerned the Court's power to decide a discrete case, in which there is a conflict between a statute and the Constitution. Roberts's misreading of Marbury is a rehash of Cooper v. Aaron. Indeed, Cooper–which was largely drafted by Justice Brennan–cites that exact same sentiment from Marbury.
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
Roberts is channeling Cooper with his citation of Marbury.
In Cooper, Justice Brennan also cited United States v. Peters, another, lesser-known decision from Marshall.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136.
In Whole Woman's Health, Roberts dutifully incorporates that same sentence from Peters as well.
I discuss Peters in my article on Cooper (pp. 1178-1183). But the citation is not complete. Justice Brennan only quoted part of Marshall's opinion, as did Roberts. Here is the full passage. The critical portion of Marshall's analysis appears after the semicolon:
If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the union, and in averting con-sequences so fatal to themselves.
In Peters, Pennsylvania state courts were purporting to reject the judgments of the federal courts by holding that the latter lacked jurisdiction to operate. In that sense, "the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." That is, federal courts could not decide matters within the jurisdiction established by Congress. In short, Peters established the principle that states cannot interfere with a binding federal court judgment. Peters has nothing at all to do with states (purportedly) nullifying federal law. This case has no relevance for Whole Woman's Health v. Jackson. It's bad enough that Roberts cited Marshall out of context. But Roberts adopted Brennan's misleading editing. I expected better than the Chief copy-and-pasting from the Warren Court.
Justice Sotomayor's dissent, which was joined by Justices Kagan and Breyer, openly praised Cooper.
In its finest moments, this Court has ensured that constitutional rights "can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted 'ingeniously or ingenuously.' " Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today's fractured Court evinces no such courage.
"Finest moment"? Not quite. The superficial outcome in Cooper may be praiseworthy. (The actual outcome was bleak, as courts simply ignored the decision). But the reasoning in Cooper was at once audacious and vacuous. Par for the Course on the Warren Court. Chief Justice Roberts could not bring himself to cite Cooper. Nonetheless, he still sipped at the trough of judicial supremacy.
I will have more to say about judicial "courage" soon.