Cooper v. Aaron, 358 U.S. 1 (1958)

 Note on Cooper v. Aaron, 358 U.S. 1 (1958)

Cooper v. Aaron

358 U.S. 1 (1958)

[Following the ruling in Brown v. Board of Education, 347 U.S. 483 (1954), that official racial segregation in public schooling was unconstitutional, Little Rock, Arkansas, sought to integrate the public schools in accordance with a plan approved by a federal district court.  Arkansas Governor Faubus called out the National Guard to prevent school integration and was then enjoined from this action.  The schools were integrated under the protective umbrella of army paratroopers, but the following year the Little Rock schools sought to delay integration to avoid further “chaos, bedlam, and turmoil.”  The district court granted the delay, which was reversed by the Eighth Circuit.  The Supreme Court affirmed.  Governor Faubus and the Arkansas Legislature insisted that they were not bound by the Supreme Court’s decision in Brown because they were not parties to the case.  The Court, in the dicta following, addressed that collateral contention.]

            CHIEF JUSTICE WARREN AND JUSTICES BLACK, FRANKFUTER, DOUGLAS, BURTON, CLARK, HARLAN, BRENNAN, AND WHITAKER, for the court.

            [We] answer the [contention] of the Governor and Legislature that they are not bound by our holding in the Brown case.

            [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 [Marbury] that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”  The decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that the principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by the Court in the Brown case is the supreme las of the land, and Art. VI of the Constitution makes it a binding effect on the States “any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.”  [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 judgements, the constitution itself becomes a solemn mockery.”  United States v. Peters, [9 U.S. (5 Cranch) 115 (1809)].  A Governor who asserts a power to nullify a federal court order is similarly restrained.  If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases” Sterling v. Constantin, 287 U.S. 378, 397-398 [(1932)].

NOTE

Was the Cooper v. Aaron Court correct?  Consider the following views.

1. Justice Felix Frankfurter.“The ultimate touchstone of constitutionality is the constitution itself and not what we have said about it.”  Graves v. O’Keefe, 306 U.S. 466, 491-492 (1938) (Frankfurter, J., concurring).  But is the meaning of the Constitution self-evident?  Constant over time?  Does Frankfurter mean to suggest that stare decisishas no role in constitutional adjudication?
2. Constitutional scholars.Thomas Cooley, the preeminent constitutional scholar of the nineteenth century:

[T]he judiciary is the final authority in the construction of the Constitution…, and its construction should be received and followed by the other departments [of government].  Their judgments become the law of the land on the points covered by them, and a disregard of them, whether by private citizens or by officers of the government, could only result in new controversy, to be finally determined by the judiciary in the same way.

Cooley, the General Principles of Constitutional Law 158 (1898).  Two current constitutional scholars emphatically agree:

            The accepted wisdom is that Cooper’s statement of judicial supremacy was an overstatement, politically necessary in its context but indefensible as a general claim of judicial interpretive authority.  To the contrary, we defend Cooper and its assertion of judicial primacy without qualification [because judicial primacy] provides the benefits of authoritative settlement [of constitutional disputes] as well as the related benefits of inducing socially beneficial cooperative behavior.

Alexander and Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1362, 1371 (1997).  Is practicality an adequate reason for deference to the Court’s constitutional interpretations as final?

1. President Thomas Jefferson.“[To grant] to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”  Letter to Abigail Adams, Sept. 11, 1804 (8 The Writings of Thomas Jefferson 310 (Ford ed., 1899)).  Was Jefferson right?  Is the judiciary despotic?
2. President Andrew Jackson.The following is an excerpt from Jackson’s 1832 veto message, when he vetoed the bill re-chartering the Second Bank of the United States.  Earlier, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Court had ruled that creation of the bank was a “necessary and proper” means employed by Congress to effectuate its expressly delegated powers.

            It is maintained by advocates of the bank that its constitutionality in all its features ought to be considered as settled [by] the decision of the Supreme Court [in McCulloch].  To this conclusion I cannot assent…[The] opinion of the Supreme Court [ought] not to control the coordinate authorities of this Government.  [It] is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill [that] may be presented to them for passage [as] it is of the supreme judges when it may be brought before them for judicial decision.  The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.  The authority of the Supreme Court must not, therefore, be permitted to control congress or the Executive when acting in their legislature capacities, but to have only such influence as the force of their reasoning may deserve.

2 Messages and Papers of the Presidents 576, 581-583 (Richardson ed., 1896).  Would Jackson’s reasoning be equally applicable if Congress had enacted the bank charter bill into law over his veto and Jackson had then refused to expend appropriated money to breathe life into the Second Bank?

1. President Abraham Lincoln.In Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1897), the Supreme Court held that the right of whites to own black slaves was a constitutionally guaranteed property right and thus ruled that Congress could not bar the introduction of slavery into the territories, nor could black be citizens.  Two days before the decision was announced, President James Buchanan in his inaugural address said that “the question of domestic slavery in the Territories [is] a judicial question which legitimately belongs to the Supreme Court, [and] will be speedily and finally settled.”  Recall Alexander and Schauer’s comments on the “settlement function” of the Court, above.

            In the wake of Dred Scott, the binding quality of the Court’s decision became a political issue.  In his first inaugural address, of March 4, 1861, Lincoln addressed this issue:

            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 the very high respect and consideration in all parallel cases by all other departments of the Government.  [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.

6 Messages and Papers of the Presidents 5, 9-10 (Richardson ed., 1897).  The Dred Scott case decided the question of whether Scott was a slave or was free, and in doing so the Court declared its opinion that the federal government could not bar the introduction of slavery into the territories.  Suppose that prior to secession and civil war, Lincoln had urged Congress to outlaw slavery in all federal territories and Congress had done so.  Whose interpretation of the constitutionality of this action should be dispositive?