Judicial exclusivity Cooper V. Aaron - Federal judiciary is supreme – sCt binds states

• Facts. Arkansas state officials claimed that they were not bound by a lower federal court desegregation order.

• Dictum(?)/Holding. SCt went out of its way to state that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and that the SCt’s interpretation of the USC is binding on state legislatures and executive and judicial officers.

Does judicial review imply judicial supremacy?

• Counter-majoritarian nature of judicial review makes judicial supremacy problematic.

• Two perspectives

• History of JR has been deplorable  SC should exercise JR with reluctance.

• History of JR has protected our civil liberties  SC should readily exercise JR.

• History of JR

• Dred Scott (1857) – invoked as example of judicial overreaching. SC held that blacks could not be citizens of U.S., and that Congress had no power to exclude slavery from territories.

• 14^th Amendment (1868) – overruled Dred Scott’s holding that blacks were not citizens. Imposed broadly-worded constraints on states  gave judiciary more power to regulate state behavior.

• Lochner (1905)

1. Cited as example of judicial overreaching. SC held maximum hour laws violated people’s rights to be free from economic regulations.

2. Generally, during New Deal, SC collided with Executive and Congress, which promulgated sweeping regulations that SC overruled.

3. But SC then allowed these regulatory laws, overturning Lochner.

• Brown v. Board of Education (1954) – cited as example in support of JR. SC imposed desegregation on states violating individual liberties.

• Roe v. Wade (1974) – created constitutional right to abortion.

1. Exemplifies differing historical analyses regarding JR.

2. Supporters analogized Roe to Brown.

3. Opponents analogized Roe to Lochner (no explicit right to abortion or freedom from economic regulations; judicial preference) and Dred Scott.

Departmentalism

• Most important piece of constitutional interetation in U.S. history – Lincoln’s first Inaugural: “I hold that in contemplation of universal law, and of the USC, the Union of these States is perpetual.” This seems to qualify judicial supremacy.

• Lincoln is stretching it here

• AC provided for perpetuity as well, but

• USC preamble intended to “create more perfect union”

• Lincoln’s argument works if and only if there was some overriding moral imperative not found in USC, such as need to prevent spread of slavery.

• But USC protected slavery!

• This begs issue of extent to which USC is source of authority.

Jurisdiction and standing

• Need for political constraints on SC: alternative views

• Because judicial branch can only hear cases, branch is not very powerful/dangerous.

• Since so much of JR rests on judiciary’s prerogative to check legislative branch  we should examine whether judiciary is well-suited to the task.

• Does Congress’ power of reprisal allay the countermajoritarian difficulty? Is the exceptions clause too broadly worded?

• Limitations on judicial power

• Case or Controversy Requirement (USC Article III, §2) – SCt can resolve only actual cases/disputes. SCt cannot grant advisory opinions.

• Appellate Jurisdiction

1. Congress can make exceptions to SCt’s appellate jurisdiction.

2. Congress does not have to create lower federal courts  Congress can stipulate what their jurisdiction is and is not.

3. Federal judicial power extends to diversity jurisdiction, whose minimal required amount ($75K) is set by Congress. The minimum amount for diversity jurisdiction was raised to $75K effective 1/17/97.