In his paper, “The Irrepressible Myth of Cooper v. Aaron” published by the Georgetown Law Journal, Josh Blackman writes,  “Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties.”

The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.” Second, Cooper asserted a principle this Article calls 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.

Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.”

Not so.

Blackman argues that these principles were in fact novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate. Through a careful study of the papers of Justices Black, Brennan, Burton, Clark, Douglas, Frankfurter, Harlan, and Chief Justice Warren, Blackman exposes the constitutional origins of this irrepressible myth.

Cooper arose in a very tumultuous time in American history. Since the New Deal era, the Court had been looking for the right opportunity to undo the ruling in the 1896 anti-canonical case of Plessy v Ferguson that created the “separate but equal” mandate. This opportunity came in what would become one of the most important cases in the entire history of the Republic. Brown v Board of Education (1954).

At the time, nearly two dozen states racially segregated their schools. But Brown only considered the constitutionality of the laws in four of those states: Kansas, South Carolina, Virginia & Delaware. In a unanimous decision, the Warren Court found that segregated public schools violated the equal protection clause of the 14th amendment. However, the Court did not order that all schools nationwide must desegregate immediately. Instead, the Court ordered another round of oral arguments to decide how Brown should be implemented

One year later, in Brown v Board of Education II (1955) –or simply Brown II – the Justices issued an order to the lower courts in Kansas, South Carolina and Virginia: “Enter such orders and decrees as are consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to their cases.” Officials in these three States were now bound by the Supreme Court’s judgment to integrate their schools with “all deliberate speed.” (The Delaware schools had already found that the segregated schools were unlawful.)

But what about other states that were not a party to Brown? Cooper v Aaron (1958) would resolve this question.

In 1955 the Little Rock, Arkansas school board approved a plan for gradual integration. However, the so-called “Massive Resistance” spread to Arkansas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation. Based on that amendment a State Court judge issued an injunction against members of the little rock school board. They were ordered to stop the implementation of the federal court’s integration plan at Central High School.

Very often, when the courts are deciding issues in a tumultuous time, out of necessity, they sometimes reach too far. And in the years since this case, the court has somewhat equilibrated. Certain aspects of that decision they have relied on; certain aspects they haven’t relied on. Blackman’s paper focuses on two particular aspects of the Cooper decision that he refers to as “irrepressible myths.”

He defines two different concepts that are often conflated -the judgment of a court and the courts precedent-

When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bill cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it comes to the Supreme Court, people flip that on its head. They say “well the Supreme Court has ruled that makes it binding on everyone everywhere.”

That cannot be the case but the Supreme Court’s precedents are controlling for all courts. So when the Little Rock Central High School said ‘I don’t care I’m going to keep segregating my school. I don’t care what the Brown ruling said.’ I can be sued. And a state judge or a district judge can bind you, to enjoin you to comply with Brown. But that additional step of converting a precedent to a judgment is very important, especially in civil rights litigation, though it’s often not very well understood. And the reason many people fail to understand this is because of Cooper v Aaron.

This is due to the two aforementioned concepts that come from Cooper one is judicial supremacythe other -judicial universality- Judicial supremacy holds that with a simple majority vote of the court they can declare, with finality the supreme law of the land.

Judicial universality stems from a paper written by Josh Blackman and Howard Wassermann. This is the notion that the Supreme Court constitutional interpretation obligates not only the parties in a different case but also parties in a similar case. In other words, when Smith sues Jones and there is a final judgment, it also binds Bill. The Court’s unitary opinion in Cooper, signed by all nine justices (which is very rare) says these aspects were basic and relied on settled doctrine. ‘The Irrepressible Myth’ takes the position that this particular aspect of the decision is not correct. These were broad novel and unprecedented assertions of power that are inconsistent with how all courts operate yet five decades later these myths remain.

The phrase irrepressible myths comes from a paper written by John Hart Ely on what he called “The Irrepressible Myth of Erie” in the Harvard law review in 1974; challenging the orthodox interpretation of the Eerie Railroad v Tompkins decision, which seemed to purport as a single command, three distinct standards laid out in the Constitution.

The concept of ‘The Irrepressible Myth’ has since been frequently adopted by Constitutional Scholars to refer to any case, doctrine, or assertion made by the Court that has been factually disproven, but seems to carry on all the same in the collective memory of Constitutional lawyers, scholars and amongst the general public.

Given the continued existence of the myths in Cooper, which still persist five decades later, Blackman sought to bring something new to the discussion in his paper, “The Irrepressible Myth of Cooper v. Aaron.”

After examining the papers of Justices Hugo Black, William Brennan, Harold Burton, Tom Clark, William O. Douglas, Felix Frankfurter John Marshall Harlan and Chief Justice Earl Warren. The only Justice excluded was Charles Whittaker who simply did not have any collection of papers from which to draw from. These papers were important because Cooper was signed by all nine justices. Even though Justice Brennan was the lead draftsman, the others were responsible for writing comments. More often than not, a Justice ignores comments, but here, Brennan had to get everyone on the same page. For the most part, he listened to his brethren and incorporated their notes into the final opinion. Because of this, you can actually look at these documents and develop a red-line mentality and track the changes in their drafts to see how the document evolved.

In his paper, Blackman creates a coherent narrative revealing how the message in Cooper evolved through six distinct drafts as the opinion was prepared in the course of about 10 days or so – it was done very very quickly.

This all came about as part of a battle against the anti-canonical doctrine of Plessy v Ferguson (1896). While challenges to institutionalized racial segregation can be traced back to the Progressive era of the 1920s and 1930s with cases brought by the NAACP that challenged “Separate but Equal” and that laid the foundation for the then proto-doctrine of Substantive Due Process, these early victories spurred the school desegregation cases of the 1950s that, for the first time, sought to take on and overturn Plessy directly.

This is where both Blackman’s paper and the modern story of desegregation officially begin with Brown v Board of Education (1954) and its follow-up case Brown v Board of Education II (1955). Brown II did not purport to desegregate schools immediately. Instead, it ordered desegregation take place “with all deliberate speed.” The idea behind that now famous instruction was to let the local courts craft mandates and injunctions to deal with each situation as it came up. Brown II applied this to North Carolina & Virginia. A similar principle was applied to Washington DC in the companion case Boling v Sharpe (1954) that dealt with school segregation in federal law, which was struck down as a violation of the Fifth Amendment’s Due Process Clause.

That brings us to Little Rock and the Little Rock Independent School district. It was not a party to Brown.

So was the Little Rock school district bound by the decision? The simple answer is no. Recall our earlier example – when Smith sues Jones Bill is not bound.

As it turns out, the Little Rock School Board, which was elected, and at the time made up of mostly segregationists, decided it was not going to go along with this unless they were dragged kicking and screaming.

Ultimately, a federal district court in Little Rock issued a desegregation order to integrate the schools, including Little Rock Central High School. Meanwhile, a state court – the Pulaski County Circuit Court – issued an injunction saying don’t integrate the high school.

In effect, we had two different courts within the same jurisdiction issuing two different orders. The federal court was saying integrate; the state court was saying do not integrate. Now, most would assume that, of course, the federal court prevails. But that’s not the case. And nothing in the supremacy clause of the Constitution states that. State courts and federal courts have equal authortiy to interpret the Constitution.

The conflict though arises when you’re a state official asking yourself “Which court do I listen to?”  If I listen to the federal court the state court might hold me in contempt if I listen to the state court the federal court can hold me in contempt.

Only the U.S. Supreme Court could resolve that kind of tension. This is how the conflict in Little Rock began. Then it got worse as becoming what you might refer to as a game of injunctive whack-a-mole. A district court issued a ruling binding the school board. The governor showed up with the National Guard to block the black children from entering the school. The federal district court issued an injunction against the governor and the National Guard. At that point, the Little Rock Police department, which was not bound by the prior injunction, showed up to keep the black children from entering the school. At this point, we have a crisis because the officials are taking advantage of the distinction between judgment and precedent. If you find yourselves wondering where these Arkansas racists got this quasi-evil tactic from, you may be surprised by the answer… Abraham Lincoln

A lot of the stretches back to the abolitionist movement and Lincoln’s argument that the Dred Scott decision only controlled Dred Scott and Sanford because the U.S. government was not a party to the case. It didn’t even file an amicus brief; it couldn’t be bound by Chief Justice Roger Taney’s now reviled ruling- and so the southern manifesto traces its roots back to Lincoln.

Bizarrely, Brennan’s precedent in Cooper traces back to Steven Douglas. Douglas didn’t have to abide by Dred Scott. The Supreme Court is the keeper of the Constitution so everything is backward, right? The segregationists are siding with Lincoln and the federal court are invoking Douglas.

Ultimately, President Eisenhower sent in troops in a very famous scene where they escort the Little Rock nine up the steps to the classroom. Eisenhower was deliberate and very careful in his wording in the executive order he issued, citing the district court ruling and said that was what he was enforcing. He didn’t mention the Supreme Court. In fact, one of the biggest criticisms held in regard to Eisenhower was he never came out in support of Brown.

Eisenhower remained ambivalent toward Brown and never said much about it. But he said he would enforce the district court rulings. Schools could not disregard them. So at that point, students were escorted into the school, Byt the district court did something that was very much unexpected. It granted a 30-month extension for the integration plan. The judge said that because there was chaos and bedlam and turmoil, he couldn’t allow this integration order to go into effect.

The 8th circuit then reversed that saying that all deliberate speed means now. The 8th circuit stayed its decision then an appeal went to the Supreme Court. We should be careful to remember that with Cooper v Aaron what was at issue were the decisions by the members of the school board. It wasn’t Faubus versus Aaron. (There was another case involving Faubus, this was not it.)

The Supreme Court held that the 30-month extension was not consistent with all deliberate speed. As Chief Justice Warren stated: “Merely having chaos on the ground did not justify two full years of continuing non-integration.” But the Court didn’t stop there; upon review of the opinion of the 8th circuit court, it held that the first 17 pages of the opinion were enough to dispose of this case.

But the Court then moves on to the last two pages of the public opinion, which is almost exclusively the focus of the second part of Blackman’s article. This section answers whether the Arkansas governor was bound to enforce Brown even though he was not a party to that case. And this is where the Court develops the irrepressible myths that Blackman identifies.

First, there is Judicial Supremacy. There is a single sentence in Cooper that sums it up very well. The court says “the interpretation of the 14th amendment enunciated by the court in the Brown case is the supreme law of the land.” That is it’s not just the 14th amendment that’s the supreme law of the land, it’s the Court’s interpretation of that amendment that is itself the supreme law of the land.

The second principle which this article calls Judicial Universality. The best summary for that is found written by Justice Breyer in his book: “Making Democracy Work.”  Breyer wrote: “The court in Cooper actually decided that the constitution obligated other government institutions to follow the Court’s interpretation. Not just in a particular case but in similar cases as well.”

In his article, Blackman asserts that neither of these statements can possibly be true. If a simple majority vote in the Supreme Court could be declared the supreme law of the land and the other majority could not change it absent a constitutional amendment. And under our foundational principle of jurisdiction Smith versus Jones- courts can only bind the parties in any given case. The mere fact that the Supreme Court is supreme doesn’t change these facts. Critically, with respect to Judicial Universality, no court since has ever reached these conclusions. And with respect to both principles, no court before has ever reached these conclusions.

This was very much a product of a serious crisis that this article freely concedes – and I emphatically agree – was above the justices’ power. In fact, the Court’s opinion had virtually no practical effect.

The Little Rock school crisis continued unabated. Immediately after Cooper was decided, the Arkansas governor transferred all the public schools to private charters thereby getting out of the state action doctrine. Private charter schools weren’t bound by the 14th amendment, so for a full year, there were no public schools in Little Rock. What broke this log jam? It wasn’t a court. It was more moderate members being elected to the school board. They then agreed to engage with the reintegration plan.

So despite the Supreme Court’s opinion noble opinion, it had zero effect practical effect.

In the end, the Supreme Court “supremacy” didn’t go very far. In the 5 years after Cooper, districts across the South basically ignored it. Did the Supreme Court Grant Certiorari? Not even once. Despite numerous cert petitions from segregated school districts across the South, the Court wouldn’t take any of those cases. It just looked the other way.

It’s really easy for lawyers in Washington D.C. to sit in their marble palace and issue these opinions. It’s a very different matter putting them into effect.

The third part of Blackman’s article traces the evolution of the doctrines of judicial supremacy and universality throughout the six drafts of the Cooper opinion. While it wasn’t always clear which drafts were which. They were in various justices’ papers with different dates and different red lines on them. But he was ultimately able to identify six distinct drafts of the case.

These papers illustrate the way the justices grappled with how to establish the doctrine of supremacy and universality. The main question is this: could these doctrines be supported by past precedent or does it merely follow from these precedents? At first glance, answering that question might well be mistaken for Judicial Sophistry – But it is much more.

What makes this a very big deal is the Court said these doctrines are basic and well settled. That would imply this issue must have been decided 200 years ago. But what you see with each successive draft is that they move away from these various precedents. Now these precedents confer a rule that we can build upon, one that follows from it. But that’s a very different principle than saying these are well settled.

Among the leading cases are Article VI of The Constitution, which includes the supremacy clause and the oath’s clause, Marbury v Madison (1803), United States v Peters (1809). While Peters is not well known, or oft studied, it was nevertheless a fairly significant case. And a series of cases that have come to be known as the Booth Case – A series of cases beginning with In Re: Booth (1854) out of the Wisconsin Supreme Court and Ableman v Booth (1859) from the U.S. Supreme Court. The Booth case dealt with whether a Wisconsin State Court could issue Habeas to a federal prisoner- that is when someone tried to obstruct the capture of a slave they were thrown in federal custody. Could a state court free a prisoner in Federal court? This was a really important case that no one talks about today. This was Justice Taney’s other major opinion nobody wants to talk about, but is a very big case all the same. The last Is Sterling v Constantin (1932) this is a great Texas case where the governor declares martial law and he basically tries to put limits on the production of oil in his own state. And there was a lawsuit filed in the state in which he stated he was not subject to any Court’s jurisdiction because we were under a state of martial law. It’s a fascinating case –

But none of them stand for the propositions which Cooper cited and the research Blackman did suggests that the judges realize this. With each successive draft, the court relied less and less on these precedents. They more or less said, “Well let’s use these rules and build upon them. These changes acknowledged that the court never before claimed such power of supremacy and universality. It was breaking new ground.

Now, the mere fact that they’re breaking new ground doesn’t mean they’re wrong. Very often, courts make new rulings and we can justify them. But these claims were novel, new, not supported, and have not really been used since. This is why these “principles” can safely be called myths. They existed to deal with this exigency, which was unquestionably awful.

But in hindsight, people have gained a little bit of clarity. And as has been mentioned before, ultimately these judgments had virtually no effect on the school districts that did an end-run around these rulings by transferring the schools from public to private charters. At once, this doctrine was laid bare. No court, no matter how high in stature, can force people to accept a judge’s interpretation of the Constitution. The Supreme Court’s authority is, at best, merely persuasive.

The last part of Blackman’s article focuses on how Cooper has been developed in the last half-century. The court has not shied away from this principle of judicial supremacy. It’s provided in cases such as Powell v McCormack (1969), Baker v Carr (1962), United States v Nixon (1974), to name just a few. But in those cases, there was no meaningful resistance to the court’s interpretation. After the Supreme Court ruled on United States v Nixon, President Nixon turned over the documents and he resigned shortly thereafter.

It was only in slavery and segregation that you found such massive resistance to the Supreme Court’s opinion. Indeed after Cooper was decided people just disregarded it. Despite all best efforts, neither Josh Blackman, during his research into this case, nor me, during my research into his research could find a single example of the Court using Cooper as a precedent for judicial universality. Not even during the Massive Resistance.

So Justice Breyer, who really encapsulates this theory, can’t really peg down where this doctrine is in Cooper. This lends further credence to calling Cooper a myth. It’s not that it actually says this but I think it’s how people have understood it to be said. In fact, there have been some lower court decisions that have said the opinions issued by U.S. Courts of Appeals are binding on everyone. In other words, if the 9th circuit issues a ruling it binds the government everywhere. This was a Reinhardt opinion.  You have a similar decision in the southern district of New York. Those have not gone anywhere.

But at the bottom, the Supreme Court is still a court and follows the usual rules of a court. Its precedent is persuasive to everyone – state courts and federal courts alike. But its judgments are only binding on the named parties. Stating the principles of judicial supremacy and universality in the absence of antagonism is simple enough. When trying to put them to effect, however, they are exposed as mere myths.

Bob Fiedler
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