This week marks the anniversary of a decision that has stirred debate about the constitutional role of the judiciary for more than half a century. In a remarkable opinion signed by each of its nine members, the Supreme Court in Cooper v. Aaron (1958) stated that public officials in Little Rock, Arkansas, were required to implement a desegregation plan in compliance with the Court's prior decision in Brown v. Board of Education (1954). In Cooper, the Court asserted that "the federal judiciary is supreme in the exposition of the law of the Constitution" and all state officials must adhere to the Court's decisions and follow the rules laid down in those decisions in similar future cases. At points, the Court seemed to identify its own decisions with the Constitution itself.
Cooper has inspired a torrent of criticism from august scholars over the years, who regard it as the source of a pernicious but widely-held view of judicial authority, termed "judicial supremacy." Critics of judicial supremacy have rejected Cooper's apparent identification of its decisions with the Constitution. They have further argued that officials who are not parties to a given case need not comply with the Court's decisions if they disagree with them--unless and until they are faced with a court order addressed to them personally.
Today, it's worth looking back at the historical context in which Cooper was decided and evaluating the Cooper Court's conception of judicial authority. While some of the criticism of Cooper has merit, the Court was correct in claiming the authority to bind government officials to its decisions--even if they are not parties. The Court fulfilled its duty by exercising that authority in the face of official lawlessness.
Cooper was the legal climax of a year-long crisis in Little Rock. In the wake of Brown, the Little Rock school board adopted a gradual desegregation plan. The first year of the plan, as implemented in 1957, called for the admission of nine black children to a single, formerly all-white high school.
Arkansas Governor Orville Faubus responded to the desegregation plan by calling out the National Guard to help resist its implementation. What followed was among the most shameful scenes in modern American history--furious white crowds jeering and spitting at nine incredibly brave children, trying to block them from entering the school. Faubus' actions brought him into conflict with a federal district court order directing the school board to proceed with the desegregation plan.
At this point, President Dwight Eisenhower intervened. Despite his failure to give a full-throated endorsement of Brown, Eisenhower insisted upon the need to respect "the binding effect that Supreme Court decisions must have on all of us." Eisenhower met with Faubus and urged him to use the National Guard to control the crowds around the high school rather than to prevent black children from entering it.
But Faubus refused. Instead, he removed the National Guard and allowed the crowd to rage out of control. Eisenhower ultimately directed the Secretary of Defense to use troops to enforce the district court's desegregation order . This put an end to the chaos outside of the school, but it did not put an end to Faubus' resistance to Brown. Aligning himself with extreme segregationists in the state legislature, Faubus declared that Brown "is not the law of the land." The school board caved to this political pressure, filing a request for a two-and-a-half-year delay in implementing desegregation. The district court granted the request, but the court of appeals reversed. Chief Justice Earl Warren called a Special Term of the Supreme Court into session to consider the case. The stage was set for Cooper v. Aaron.
At oral argument, the question of the Court's authority took on central importance. According to the school board's lawyer, the board was caught in "a head-on collision between the Federal and State Governments" that it was powerless to resolve. The Solicitor General, arguing on behalf of the United States as amicus, urged the Court to send a message: "[T]his Supreme Court has spoken; that's the law of the land; it's binding; we've got to do it." Given this context, it is no surprise that the Court found it necessary to address the question of whether the Supreme Court is, as Justice Felix Frankfurter would put it in a letter to Justice John Marshall Harlan II several days before oral argument, "the authoritative organ of what the Constitution requires."
The Cooper Court affirmed the court of appeals and made plain that no more resistance to Brown would be tolerated. It began by describing the "chaos, bedlam and turmoil" that gave rise to the board's request for delay. The Court attributed these conditions to "the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities," stating that Arkansas officials' actions "reflect[ed] their own determination to resist this Court's decision in the Brown case." The Court affirmed that "constitutional rights... are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature." The Court went on to state that "the federal judiciary is supreme in the exposition of the Constitution" and "the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land." This statement was followed by a reference to the oath taken by public officials to support the Constitution. The implication is that this oath binds public officials to obey the Constitution as interpreted by the Court.
The Court's implicit identification of constitutional meaning with its own interpretation of that meaning does not hold up under scrutiny. If the Constitution means what the Court says it means, it would it be impossible to say that a Supreme Court decision was wrong unless and until the Court overruled itself (or the Constitution was amended). Indeed, every dissenting opinion is an assertion that the Constitution does not mean what the Court says it means in a given case. Finally--and most fundamentally--the identification of constitutional meaning with constitutional interpretation is incompatible with the rule of law, understood as a system of legal rules that are accessible to all, binding upon all and the content of which does not depend upon any particular person or group of people. If the law is what five justices say it is, the rule of law would give way to the rule of five people in robes.
But the proposition that a given Supreme Court decision does not bind government officials who disagree with the Court, so long as they are not parties to the case, is also untenable. As I have written previously, the Framers, following John Locke, recognized that men are not trustworthy judges of their own conduct. The Framers established an independent judiciary to act as a check against unconstitutional conduct by legislatures and executives. The judiciary, owing to its comparative insulation from majoritarian pressures, is less likely than other organs of government to take the majority's view of the minority's rights or cave in the face of majoritarian tyranny. The judiciary is in the best position to provide an impartial, reason-guided inquiry into the constitutionality of the government's means and ends. But such judicial engagement is of little value if every government official who is not a party and who has his own ideas about what the Constitution requires is practically free to persist in unconstitutional conduct until personally ordered to stop. In the context of Cooper, thousands of school boards would have had to be sued in order to fully implement desegregation. Again, the rule of law could not be preserved.
Cooper's critics are correct to reject the notion that the Constitution means what the Court says it means. But while the Court can and does err (sometimes shamefully, as it did in allowing states to engage in eugenic sterilization on the premise that "three generations of imbeciles are enough") in its interpretation of the Constitution, Cooper demonstrates the unique capacity of the courts to act as a final check on unconstitutional conduct. The NAACP's brief in Cooper correctly framed the case as involving "not only the vindication of the constitutional rights declared in Brown, but indeed the very survival of the Rule of Law." To its immense credit, the Cooper Court rose to the occasion.