The Myth of Judicial Supremacy

In light of Newt Gingrich's recent statements against the much-too-accepted idea of judicial supremacy, Harvard Law student Joel Alicea takes some time to delve into these matters.  In an excellent essay, Alicea finds that those who oppose the myth of judicial supremacy are following in the footsteps of our greatest president, Abraham Lincoln.  Here is Alicea on some very important background details on Cooper v. Aaron, the case where the Supreme Court conflated judicial supremacy with their constitutional duties arising out of the judicial power:

Cooper v. Aaron came to the Supreme Court under extraordinary circumstances, the drama of which is matched by few instances in our constitutional history. On the day before black students were to be admitted to Central High School in Little Rock, Arkansas, in compliance with the local school board’s desegregation plan and the Court’s decision in Brown v. Board of Education, Governor Orval Faubus ordered the state national guard to surround the building and declare it “off limits” to blacks. The governor’s actions precipitated a national crisis. President Eisenhower ordered in the Army to ensure desegregation moved forward. Months later, still in the midst of the crisis and at the request of the Little Rock School Board, the federal district court overseeing desegregation in Little Rock halted implementation of Brown, reasoning that more time was needed before desegregation could proceed.

Of course Gov. Faubus was wrong, but in countering his misdeeds, the Court, rightly seeing the dangers of Faubus's actions, greatly overreached in their attempt to quash the attempt at state nullification (a doctrine which far too many Tea Partiers and conservatives seem to think follows from the Founders principles).

Here is the Court's principal error: 

The scope of the Court’s statement was not tailored to its end. Cooper was a case about enforcing federal law against the states. The Court need only have claimed the power to bind the states to its decisions; there was no need for the Court to assert its supremacy in constitutional interpretation against Congress and the president. The second sentence of the Court’s opinion makes it clear that the case “involve[d] a claim by the Governor and Legislature of a State that there [was] no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the Constitution.” Moreover, the Court’s statement was wholly superfluous to the legal issue in the case. Its rejection of Governor Faubus’s intimidation tactics sufficed to require desegregation to go forward. But the Court chose to assert a far more sweeping power: the final word on the meaning of the Constitution for all levels of government.

And finally the battle lines are draw between Lincoln and Cheif Justice Roger Taney, the man behind the majority opinion in the infamous Dred Scott case:

The real question is not whether opponents of the Court’s assertion of judicial supremacy in Cooper applaud the outcome of the case; it is whether supporters of judicial supremacy understand that their position places them on the other side of Abraham Lincoln. It was Lincoln who, in response to Chief Justice Roger Brooke Taney’s opinion in Dred Scott v. Sandford, rejected judicial supremacy in his first inaugural address. Lincoln believed that accepting judicial supremacy would mean that “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.” He followed through on his challenge to the Court by defying the Dred Scott decision and issuing passports to free black citizens. How odd that those who follow in the tradition of Lincoln should find themselves accused of the sins of Taney.

But of course in the eyes of the New York Times, the arguments of conservatives against judicial supremacy amount only to little more than covert racism.