This Day in Liberal Judicial Activism—September 29

uTN Social - Free Speech Social Media
(maroke/Getty Images)

1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . 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.

Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

More in Law & the Courts


The COVID-Clemency Disaster


The COVID-Clemency Disaster


The Gangs of L.A.


The Gangs of L.A.


Why Biden’s Vaccine Mandate Fails the Constitutional Test


Why Biden’s Vaccine Mandate Fails the Constitutional Test


No More Jailbreaks


No More Jailbreaks

Recommended


After Altercation at Restaurant, Black Lives Matter Claims NYC Vaccine Mandate Is Being Weaponized

‘Black people are not going to stand by, or you will see another uprising,’ BLM NYC co-founder says at Monday protest.


Border Patrol Outraged by Biden’s Scapegoating: ‘He Just Started a War’

‘I see the administration wants to fry our agents, he just started a war with Border Patrol,’ said one agent.


Why Aren’t Americans Protesting in the Streets?

No one seems to care that Democrats are walking us into a fiscal catastrophe.


Justice Kavanaugh Refuses to Buckle

He had to have known that voting as he did in the Texas case would bring him bad press.


The Real Story in Durham’s Indictment of Democratic Lawyer Michael Sussmann

The special counsel’s final report on the Clinton campaign’s manufacturing of the Trump–Russia collusion narrative will be very interesting reading.


Senator Sinema to Nancy Pelosi: Break Your Word on Infrastructure, and I’m Out

Sinema reportedly has told Joe Biden that she’s aware of the game being played by Nancy Pelosi and Chuck Schumer.

The Latest


McAuliffe Argues Parents Shouldn’t Have Control over Public School Curriculum

McAuliffe was responding to Youngkin’s complaint about sexually explicit books in a Fairfax County school library.


San Diego School Board Votes to Require COVID-19 Vaccination for Students

Under the district’s ‘Vaccination Roadmap,’ students ages 16 and older must receive their first dose of the vaccine before November 29.


The Debt Limit Can Save Us

How congressional Republicans can use the debt-limit vote to push meaningful reform


Malarkey, in Trillions

The cost of a $3.5 trillion outlay is $3.5 trillion, ‘paid for’ or not.


Minneapolis to Vote on Defunding the Police as Crime Soars

A former city councilman who has experienced the rise in crime firsthand is warning Democrats against defunding the police.


Francis Coppola’s American Nightmare Returns

1963’s Dementia 13 — a tale of fear, deceit, and murderous greed — remains timely today.

Top Stories

Get our conservative analysis delivered right to you. No charge.


Most Popular


Say, How Is Joe Biden’s Memory These Days?


Say, How Is Joe Biden’s Memory These Days?

Is Joe Biden lying about the Pentagon’s advice on Afghanistan? Or can he genuinely not remember?


Psaki Responds to Obama’s Claim That Open Borders Policy Is ‘Unsustainable’


Psaki Responds to Obama’s Claim That Open Borders Policy Is ‘Unsustainable’

‘We’re a nation state. We have borders. The idea that we can just have open borders is something that…as a practical matter, is unsustainable,’ he said.


Can We Stop Pretending That Anybody Talks This Way?


Can We Stop Pretending That Anybody Talks This Way?

Sacrificing language and its rules on the altar of political hyper-sensitivity will have consequences.


View More

Read More Feedzy

The Foxhole App - Trusted News Podcasts

Leave a Reply

Your email address will not be published. Required fields are marked *