The Irrepressible Myths of Cooper v. Aaron

54 Pages Posted: 21 Mar 2018 Last revised: 19 May 2018

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: March 17, 2018

Abstract

Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court's judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. 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 parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms. Through a careful study of the papers of Justices Black, Brennan, Burton, Clark, Douglas, Frankfurter, Harlan, and Chief Justice Warren, this article dispels these irrepressible myths of Cooper v. Aaron.

Keywords: Cooper v. Aaron, Judicial Supremacy, Judicial Universality, Marbury v. Madison, Ableman v. Booth

Suggested Citation

Blackman, Josh, The Irrepressible Myths of Cooper v. Aaron (March 17, 2018). Georgetown Law Journal, Vol. 107, 2019. Available at SSRN: https://ssrn.com/abstract=3142846 or http://dx.doi.org/10.2139/ssrn.3142846

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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