The Volokh Conspiracy
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"When the Supreme Court Spoke With One Voice" But Was Ignored By Everyone
Cooper v. Aaron is not a model the Roberts Court should try to emulate.
Last week, in Garcia v. Noem, Judge Wilkinson invoked President Eisenhower's decision to send federal troops to integrate Central High School in Little Rock. And yesterday, Jeff Toobin called on the Roberts Court to reaffirm Cooper v. Aaron to stop Trump. His piece was titled, "When the Supreme Court Spoke With One Voice." Toobin wrote:
The choice for the court is clear: Either the justices will reaffirm the holding of Cooper that the federal judiciary is "supreme in the exposition of the law of the Constitution" or they will cede that authority to Mr. Trump and his aides. Abdicating its role to the executive branch would not only demean the judicial function but also invite chaos, as the nation wonders, case by case, which branch of government has the last word.
To preserve their authority, as well as the rule of law, the justices must reclaim what their predecessors in 1958 knew to be the only honorable and lawful course. And when they do, it would be even better if all nine of them in 2025 also signed their names.
In Cooper, the Supreme Court may have spoken with one voice, but it was largely ignored.
The crisis in Little Rock, and the Supreme Court's resulting decision in Cooper v. Aaron, are poorly understood. In my post, I included an excerpt from our 100 Cases book which summarizes the case. I would also recommend my article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron.
Should Cooper provide a basis for the Supreme Court to reaffirm the principle of judicial supremacy against President Trump? No, it should not.
First, Cooper was not a victory for the Court. The Court announced this principle of judicial supremacy. In response, Little Rock and the entire South shrugged. Public schools were closed, transferred to private parties, and remained segregated. Despite a torrent of massive resistance in the formof lower court litigation, the Supreme Court was not able to rely on Cooper's principle of judicial supremacy. I suspect the Court realized that its unanimous judgment, signed by nine Justices, had little effect.
Second, I'll offer a modest defense of Cooper. In Brown I, the Supreme Court unanimously ruled that the Fourteenth Amendment required that schools must be integrated. This ruling was decades in the making. And Brown II gave the lower courts ample discretion to allow integration with "all deliberate speed." The Court was not trying to force integration on an unwilling public. In response, the "massive resistance" frustrated rulings at every juncture, even if orders were not overly flouted. If ever there was an occasion to invoke judicial supremacy, the enforcement of Brown would seem to be such a case.
The facts of the present day are quite different. We do not have a definitive ruling by the Supreme Court on the scope of the Alien Enemies Act. (I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.) Rather, we have a series of hastily issued orders by federal judges, some of which were delivered orally, where there was arguable ambiguity about what was required. Can we really compare the "all deliberate speed" order in Brown II to an oral order issued by Judge Boasberg on a Saturday afternoon to "turn the planes around"? Worse still, the only thing the Supreme Court has said about Boasberg's order was that he improperly exercised jurisdiction over the case. This is not the case to wage a confrontation with the executive branch.
Third, Cooper ushered in the Warren Court's reign of judicial activism. Once judges sip from the chalice of supremacy, all other humility quickly falls. The Roberts Court has made good on curbing many of the excesses from this era, but much of the precedent remains, as Justice Scalia would say, "water under the bridge." Should the Court assert judicial supremacy against President Trump in this case, it will likely have to assert it again and again in controversies unimaginable.
Fourth, speaking of President Trump, there is a big difference between Little Rock and CECOT. During the Civil Rights Era, the clash was between the Supreme Court and the states. President Eisenhower, perhaps begrudgingly, backed up the judiciary. Today we have a conflict of a very different nature between the Supreme Court and the executive. The better analogy is whether James Madison would have actually delivered Marbury's commission, or whether President Lincoln would have ordered the release of Merryman. Here, no one will call the 101st Airborne to help Chief Justice Roberts or Judge Boasberg. To the contrary, I think most Americans would shrug their shoulders about whether aliens who are otherwise subject to removal spend their days in CECOT.
Fifth, I worry about the risk of the Supreme Court issuing an order truly out of its bounds in the separation of powers, and that order is ignored. Much of the criticism focuses how on that effort would empower Trump. But I think the even more compelling concern is how it would weaken the Court, perhaps irreparably. A court that issues a ruling that can be disregarded is no longer a court. That premise should inform the sorts of orders that are issued against the executive branch. Justice Alito stated the issue plainly: "Both the Executive and the Judiciary have an obligation to follow the law."
For those interested, I debated some of these issues at my law school with my dear colleague, Professor Ryan Nelson.
