Judicial Supremacy, Judicial Activism: Cooper v. Aaron and Parents Involved

INTRODUCTION Cooper v. Aaron is a notable decision for many reasons. It presents dramatic facts and occupies an important place in the history of the struggle for racial equality. But its role in the constitutional canon is largely as an exemplar of judicial supremacy. Cooper announced that “the federal judiciary is supreme in the exposition of the law of the Constitution” and further that an “interpretation of [the Constitution] enunciated by th[e] Court . . . is the supreme law of the land.” The consequence of judicial supremacy is generally taken to be that, as Matthew Adler puts it, “a Supreme Court ruling on constitutional matters binds the world, not just the parties to the case.” When the Supreme Court announces the meaning of the Constitution, that is, everyone else must accept its word. But what precisely that means—how far the obligation of acceptance extends—depends on how much of a Supreme Court decision consists of announcing constitutional meaning. This is a question that has received relatively little attention in the literature on judicial supremacy. To the extent that scholars distinguish among the different elements of a judicial decision, they tend to focus on the