Lincoln on Judicial Despotism

First Things, February 2003.

After the Supreme Court’s landmark 1954 decision in Brown v. Board of Educationordering the desegregation of public schools in Topeka, Kansas, lawsuits promptly were brought to dismantle legally sanctioned segregation in other states. One of these was Arkansas. There, Governor Orville Faubus and other state officials maintained that they were not bound by the Supreme Court’s ruling in Brown . That decision was constitutionally incorrect, they insisted, and amounted to a federal court’s usurpation of the constitutional authority of the states. Moreover, Arkansas was not a party in the case. Therefore, they contended that a lower federal court in Little Rock had no constitutional authority to order the desegregation of public schools in Arkansas on the basis of the Brown decision.

Arkansas’ appeal of the lower court’s order eventually made it to the Supreme Court of the United States in the 1958 case of Cooper v. Aaron . No one had any real doubts about what the outcome of that case would be. The Justices would certainly uphold the desegregation order. They did so, however, in a ruling that did more than merely remind the Governor and other state officials that they had “no power to nullify a federal court order.” In a unanimous opinion, the Court asserted, for the first time, that “the federal judiciary is supreme in the exposition of the law of the Constitution.”

The idea of judicial supremacy”or the idea that the supremacy of the Constitution entails judicial supremacy in constitutional interpretation”has come to be so widely held not only in the legal profession but also by the public at large that today it seems unremarkable. As the nation prepares for our annual celebration of Abraham Lincoln’s birthday, however, we have an occasion to consider just how remarkable it is, and just how far it is from the Great Emancipator’s understanding of the legitimate scope of federal judicial power….

First Things