Volume 107
Issue 5
May '19

The Irrepressible Myth of Cooper v. Aaron

Written By: Josh Blackman

Abstract

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. Rather, they were 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, this Article exposes the constitutional origins of this irrepressible myth.

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