This post from Prof. Steve Vladeck (Texas) discusses judicial supremacy and the language of Cooper v. Aaron. (please do not share the link outside class). He elaborates on stuff we touched on in class-the difference between the judgment in Brown (binding only on the parties and, something we did not mention, enforceable by contempt of court if ignored) and the opinion in Brown and how various officials react.
Several points worth highlighting:
1) Judicial supremacy depends on public perception and attitude. If the public regards SCOTUS opinions as pronouncing the controlling meaning of the Constitution, it creates political pressure for other actors to fall in line. Eisenhower sent in the 101st Airborne--importantly, to enforce not Brown but the district court opinion in a Little Rock lawsuit applying Brown--because national public pressure pushed him in that direction.
2) The President plays a unique role here. If the judgment involves non-federal law (as in Brown and Cooper), the President's role is to enforce that judgment, raising the question of what a President can and should do if he disagrees with that judgment. If the judgment involved federal law (e.g., the injunction prohibiting enforcement of the student-loan relief plan), the President (or some other executive official subject to presidential control) is both the party bound by the injunction and the person who enforces it.
3) The line between judicial supremacy and judicial departmentalism ultimately turns on how much leeway we give political actors who were not parties to the first case to ignore precedent until they get sued and subject to a court order. In other words, could Little Rock officials--adhering to their oaths of office and public obligation--continue enforcing current law and ignoring Brown, until sued and subject to a new judgment against them? Vladeck says no; a departmentalist would say yes.
This applies not only to how similarly situated government actors respond to precedent (i.e., how Little Rock officials responded to precedent created by a judgment in a case involving Topeka officials). It also applies to officials responding to a judgment against them. To see how much play there is in the joints and how complex this is, consider Allen v. Milligan from last term.
SCOTUS held that Alabama's congressional map--containing one majority-Black district and one district that was about 39 % Black--violated the Voting Rights Act. SCOTUS affirmed an injunction requiring Alabama to draw a map that contained a second district that was majority or a "substantial minority" Black. Alabama enacted a new map with one majority-Black district and one district that is 41 % Black. Did they ignore the court order? Or did they attempt to comply and now we have a new question--to be litigated--of whether 41% constitutes a "substantial minority"?
