At long last, I have posted my article to SSRN, “The Irrepressible Myths of Cooper v. Aaron.” Here is the abstract:
Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court’s judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme law of the Land.” Second, Cooper asserted a principle this article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms. Through a careful study of the papers of Justices Black, Brennan, Burton, Clark, Douglas, Frankfurter, Harlan, and Chief Justice Warren, this article dispels these irrepressible myths of Cooper v. Aaron.
All of the papers are available at http://bit.ly/2ohX8Rq.
I welcome any comments or suggestions.
I also gave a presentation on this paper at the Northern Kentucky University faculty workshop: