This Day in Liberal Judicial Activism—October 8

by Ed Whelan

2006 — New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’ — not opinion — that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

This Day in Liberal Judicial Activism—October 6

by Ed Whelan

2000 — Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.

My Favorite Tweets on Scalia Speaks

by Ed Whelan

“Can’t put it down. Hilarious, incisive, brilliant. And well edited. Will read and reread again and again.” That’s a tweet about Scalia Speaks from Edward Gero, the talented actor who masterfully depicts Justice Scalia in The Originalist. And here’s another from him: “A witty, insightful treasure of his speeches. A must read and re-read. Get it.”

New Challenge to P.C. Racial Gerrymandering

by Roger Clegg

The indispensable law firm (who knew there could be such a thing?) Consovoy McCarthy Park filed an important lawsuit on Wednesday, challenging the constitutionality of the California Voting Rights Act. That statute requires in particular that race-based single-member districts be created and that they replace at-large systems if “racially polarized” voting exists; the complaint alleges that this violates the Fourteenth Amendment because such “race-based sorting of voters” does not serve a compelling government interest and is not narrowly tailored.

The lawsuit is important not just because it challenges an aggressive, identity-politics-uber-alles law in our nation’s largest state, but because the federal Voting Rights Act is frequently used to coerce racially gerrymandered districts as well. To be sure, the California law goes further than the federal law has (so far), and indeed was passed to circumvent limits put on racial gerrymandering by the U.S. Supreme Court. But a successful lawsuit here could have salutary effects in other states and at the federal level, too.

So kudos all around: to the law firm, to the plaintiff (a former mayor, Don Higginson), and to Ed Blum and the Project for Fair Representation, who acted as matchmaker for the two.

Scalia Speaks: What Makes an American

by Ed Whelan

I’m going to offer occasional glimpses at the wonderful collection of Justice Scalia’s speeches in Scalia Speaks. With Columbus Day just around the corner, I figured that I’d highlight the opening speech in the collection: Justice Scalia’s speech to the National Italian American Foundation in October 1986—just one month after he became the first Italian-American Supreme Court justice. In that speech, which we’ve put under the heading “What Makes an American,” the Justice reflects on “why we are proud of our Italian heritage—and about why that pride makes us no less than 100 percent Americans.”

Scalia praises 19th-century Italian immigrants for their “capacity for hard work,” “love of family,” “love of the church,” and “love of the simple physical pleasures of human existence: good music, good food, and good—or even pretty good—wine.” He continues:

We have shared those qualities with our fellow Americans— as they have shared the particular strengths of their heritages with us. And the product is the diverse and yet strangely cohesive society called America. It is a remarkable but I think demonstrable phenomenon that our attachment to and affection for our particular heritage does not drive our society apart, but helps to bind it together. Like an intricate tapestry, the fabric of our society is made up of many different threads that run in different directions, but all meet one another to form the whole.…

While taking pride in what we have brought to America, we should not fail to be grateful for what America has given to us. It has given us, first and foremost, a toleration of how different we were when we first came to these shores. What makes an American, it has told us, is not the name or the blood or even the place of birth, but the belief in the principles of freedom and equality that this country stands for.

There’s much more in this short but beautiful speech—and a lot, lot more in Scalia Speaks.

Upcoming D.C. Events for Scalia Speaks

by Ed Whelan

Next Tuesday, my co-editor Chris Scalia and I will take part in a noontime Hoover Institution event titled “Scalia Speaks: Collecting the Wit and Wisdom of Justice Antonin Scalia.” Hoover Institution scholar Adam White, author of this very thoughtful and favorable review of Scalia Speaks, will lead the discussion. And there’s also this plum: “A limited supply of complimentary copies of Scalia Speaks will be available at the event.” More info here.

At 4:00 on Tuesday afternoon, I’ll be at Catholic University law school to discuss the book with law school dean Daniel Attridge and law professor Mark Rienzi. Justice Scalia had a special fondness (combined with high expectations) for Catholic University—it was the venue for two very interesting speeches in Scalia Speaks—so I especially welcome the opportunity. More info here.

This Day in Liberal Judicial Activism—October 5

by Ed Whelan

1995 — In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions — and “all government officials and employees during the performance of government business” — “shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona Supreme Court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

Justice Ginsburg’s Foreword to Scalia Speaks

by Ed Whelan

Justice Ginsburg has written a beautiful foreword to Scalia Speaks. You’ll have to get the book to enjoy her foreword in full. But here is her closing paragraph:

This collection of speeches and writings captures the mind, heart, and faith of a Justice who has left an indelible stamp on the Supreme Court’s jurisprudence and on the teaching and practice of law. The work of his fine hand will both inspire and challenge legions of judges and advocates. If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed, as I am confident Justice Scalia would be.

Scalia Speaks Notes

by Ed Whelan

1. Here’s a 12-minute podcast in which I discuss Scalia Speaks with Bloomberg BNA’s Patrick Gregory and Kimberly Robinson. I enjoyed the discussion and hope you do.

2. Yesterday’s inaugural event for Scalia Speaks at Antonin Scalia Law School went well. My co-editor Christopher Scalia and I thank Dean Henry Butler and law professor Helen Alvaré for joining us. I’m pleased to report that we exhausted the bookstore’s entire supply of Scalia Speaks. (Note to law-school bookstores: Order a lot of copies.)

3. On the Corner, my Ethics and Public Policy Center colleague Yuval Levin hails Scalia Speaks as an “extraordinary collection of speeches” that “offer a powerful portrait of a great public figure and thinker”—“an intellectual feast and at the same time great fun to read.”

4. Scalia Speaks continues to rank very high on Amazon’s list of over one million books—it’s #149 as I write this. The hardcover remains the #1 Best Seller in the category “United States Judicial Branch,” with Kindle and audiobook #2 and #3.

This Day in Liberal Judicial Activism—October 3

by Ed Whelan

2013 — “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

A sound observation, to be sure. But what’s remarkable is that the person uttering it is Justice Anthony Kennedy, who throughout his tenure on the Supreme Court has done as much as any justice to intrude willy-nilly on the democratic processes on the “most serious issues of the day.”

Scalia Speaks Notes

by Ed Whelan

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived—the collection of Justice Scalia’s speeches that I’ve co-edited—will be released tomorrow.

Yesterday CBS Sunday Morning had a segment related to the book that featured Justice Ginsburg (who wrote the foreword), Mrs. Scalia, and my co-editor Christopher Scalia. Not long thereafter, the book rose as high as #118 on Amazon’s list of over one million books, and it’s now the #1 Best Seller in the category “United States Judicial Branch.”

To be more precise, the hardcover is #1. Numbers 2 and 3 are Scalia Speaks audio edition and Scalia Speaks Kindle edition.

On NPR, Nina Totenberg has an engaging review of the book (with radio segment to follow one of these days). This observation of hers is right on: “Justice Scalia was a very theatrical presence, and, in most of the speeches in the book, those who knew him will quite literally hear his voice in their heads.”

The inaugural event for Scalia Speaks will take place tomorrow (Tuesday) at Antonin Scalia Law School.

Corvino vs. Anderson and Girgis on Debating Religious Liberty and Discrimination

by Ed Whelan

With Masterpiece Cakeshop v. Colorado Civil Rights Commission at center stage in the Supreme Court’s new term, I’ve been meaning to highlight Debating Religious Liberty and Discrimination, the outstanding new book written in point-counterpoint fashion by John Corvino, on one side, and Ryan T. Anderson and Sherif Girgis, on the other.

My task has been made much easier by this excellent review by University of St. Thomas law school dean Robert K. Vischer, from which I draw these passages:

Every month brings new culture-war flash points as florists, bakers, and even some public officials invoke a right of conscience not to support or participate in a same-sex wedding. These refusals, in turn, have triggered a redoubled commitment to the primacy of nondiscrimination laws among those committed to LGBT rights.…

Enter three philosophers and unlikely coauthors: John Corvino, a longtime same-sex-marriage advocate, and Ryan Anderson and Sherif Girgis, two outspoken opponents of same-sex marriage. Their new book, Debating Religious Liberty and Discrimination, is a direct challenge to our cultural moment, opting for careful analysis over clickbait, mutual understanding over demonization, and clearly demarcated disagreement over sweeping dismissal. The authors take the time to lay out their best arguments, then respond to the best arguments of their opponents. Whether or not the book ultimately causes readers to change their views is not the measure of its success. The authors provide a desperately needed model for engagement: they argue with, not at their opponent; they argue together….

[D]iscourse is strengthened when we recognize the limitations of our own positions. We have become accustomed to a cable-news culture in which guests battle for every inch and concessions are taken as a sign of weakness. Corvino, Anderson, and Girgis are upfront about where their arguments do not and should not lead. Corvino does not reject religious exemptions categorically; he concedes, for example, that providers of a service should not be legally compelled to provide custom services that violate the dictates of their consciences; it is only when they refuse to sell the very same item to other customers on the basis of the customers’ sexual orientation (or race, religion, etc.) that the law should intervene. For their part, Anderson and Girgis admit that “coercive policies would be needed…if discrimination were rife, so that LGBT people were locked out of the market or out of the public square or into second-class status.” …

In the end, two questions emerging from the analysis strike me as the most salient and, in my view, would serve as prudent starting points for future debates over religious liberty and nondiscrimination. They do not lend themselves to easy answers, but they clarify the scope of disagreement. The first question is: What value should our legal order place on a person’s ability to live with integrity?… The second question is this: Does the prevention of dignitary harms warrant imposing the law’s coercive power on those whose exercise of conscience threatens such harm?

Anyone interested in this topic (which ought to be everyone) should get this book and read both sides’ arguments—especially the other side’s arguments—with care.

This Day in Liberal Judicial Activism—October 2

by Ed Whelan

1953 — Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California Governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behavior,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969.

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

1989 — The Texas supreme court rules (in Edgewood Independent School District v. Kirby) that the state constitutional provision that requires the legislature to “establish and make suitable provision for the support and maintenance of an efficient system of free public schools” forbids the existing system of financing public education — which relies significantly on local district financing — and instead requires that the “funds available for education be distributed equitably and evenly.” The court’s gauzy standard will create (in the words of one analyst) a “quagmire of endless litigation.”

This Day in Liberal Judicial Activism—October 1

by Ed Whelan

2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

This Day in Liberal Judicial Activism—September 30

by Ed Whelan

2013—Rosemary Barkett’s 34-year Reign of Error in the American judiciary—first in Florida’s lower courts, then as a state supreme court justice (and chief justice), and finally as a federal appellate judge—comes to an end, as she retires from the Eleventh Circuit and accepts a position as an arbitrator on the Iran-United States Claims Tribunal in The Hague. How much damage Barkett can inflict in her new position is unclear, as the dysfunctional Tribunal has jurisdiction only over claims filed more than three decades earlier.

Judge Erickson Confirmed Over Lone Dissent

by Jonathan H. Adler

Yesterday, the U.S. Senate confirmed district court judge Ralph Erickson to an open seat on the U.S. Court of Appeals for the Eighth Circuit. Judge Erickson is the fourth of President Trump’s nominees to the federal courts of appeals to be confirmed. Unlike with Trump’s prior appellate appointments, there was little opposition to Erickson. The vote was 95-1.  Who was the lone vote against him? Senator Elizabeth Warren (D-MA).

NYT Hit Piece on CA7 Nominee Amy Barrett’s Religious Practices—Part 2

by Ed Whelan

Just a few more observations on religion reporter Laurie Goodstein’s New York Times article on Seventh Circuit nominee Amy Coney Barrett, titled “Some Worry About Judicial Nominee’s Ties to a Religious Group.” Numbering serially from my Part 1 post:

3. Who are the “Some” who “Worry”? Well, they evidently consist of two law professors Goodstein quotes.

One is Sarah Barringer Gordon, who opines of People of Praise that “These groups can become so absorbing that it’s difficult for a person to retain individual judgment.” Hmmm. Does Gordon actually have any basis for this judgment? Had Gordon ever heard of People of Praise before Goodstein called her? Does she have any independent knowledge of it? Or is she just doing Goodstein a favor by offering up a desired quote?

Gordon’s bio indicates that she has written extensively on Mormon polygamy in the 19th century. When she refers to “These groups,” is she lumping a 21st-century Christian charismatic community together with 19th-century Mormon polygamists?

The other law professor is Cathleen Kaveny, who is ubiquitous in pieces raising concerns about Barrett. Although you wouldn’t know it from any of her quotes or even from her own confused article, Kaveny is a former colleague of Barrett’s. Exercising heroic self-restraint, I’ll confine myself to observing that it’s rather ironic that she complains that Barrett hasn’t been “sufficiently transparent.” As I pointed out in my Part 1 post, the simple answer to Kaveny’s supposed gotcha question of “why didn’t she disclose this?” is that the Senate questionnaire didn’t inquire about membership in religious organizations.

4. Barrett has received stellar reviews from all of her Notre Dame colleagues, other law professors, every single one of her fellow Supreme Court clerks, and her former students. Appeals to religious bigotry aside, there is, in short, no basis for any concern that she lacks the independence of judgment needed to be an outstanding judge.

By the way, Barrett would not be the first judge who has been a member of People of Praise. Christopher Dietzen served with distinction as an associate justice of the Minnesota supreme court from 2008 to 2016 and, before that, as a judge of the Minnesota court of appeals for four years.

Goodstein and her supposed experts never seem to contemplate the possibility that a person who is accustomed to receive and to reflect on (as well as to give) advice in the realm of family life might have developed the faculty of critical self-reflection that well suits the judicial role.

5. Another indication of Goodstein’s bias: She falsely states that Barrett at her hearing “backed away” from the position in her 1998 law-review article that (in Goodstein’s words) “sometimes Catholic judges should recuse themselves from the sentencing phase of death penalty cases.” Even worse, she links to a characteristically error-strewn Alliance for Justice attack post (“It’s a Fact: Barrett Misled the Senate Judiciary Committee”) as support for her false claim.

As I’ve explained before (in point 4 of this post), and as law professor Rick Garnett points out in response to Goodstein, Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges—the role she would fill—was much more complicated under Catholic moral teaching on improper cooperation.

Nominations Update

by Carrie Severino

With the return of Congress and the march into fall, the number of federal judicial vacancies continues to grow. As does the number of nominations from the White House: since Congress has returned from summer recess, the President has nominated an additional 22 individuals to the federal bench.  Yet, the Senate has only confirmed six judicial nominees, a pathetic average of one nominee per month since President Trump’s first nominees were announced.  Here is a status update on President’s judicial nominees.

Total current and known future vacancies: 166

  • Courts of Appeals: 27
  • District/Specialty Court*: 139

Pending nominees for current and known future vacancies: 54

  • Courts of Appeals: 14
  • District/Specialty Courts: 40

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes (Reported by Senate Judiciary Committee)

  • Courts of Appeals: 0
  • District/Specialty Courts: 4

Nominees Confirmed by the Senate

  • Courts of Appeals: 4
  • District/Specialty Courts: 2

Early Rave Reviews for Scalia Speaks

by Ed Whelan

I’m delighted to pass along that Scalia Speaks: Reflections on Law, Faith, and Life Well Lived—the book of Justice Scalia’s speeches that I’ve co-edited and that will be released to the public next Tuesday—has received not one but two very favorable reviews in the forthcoming issue of the Weekly Standard.

Hoover Institution legal scholar Adam J. White praises the book as an “indispensable” set of speeches in which “Scalia educated, challenged, and entertained countless audiences.” White calls particular attention to Justice Scalia’s emphasis on (in White’s words) “the crucial role that education—especially civic and moral education—must play in sustaining republican government.” (Relatedly: White is the author of an excellent essay, “Antonin Scalia, Legal Educator” in the new issue of National Affairs.)

I was worried by former speechwriter Barton Swaim’s opening observation that “I’m not sure I’ve ever enjoyed reading a collection of speeches.” But it turns out that his use of the present perfect tense (“[ha]ve … enjoyed”) is a ploy. Swaim finds, to his surprise, that Scalia Speaks “somehow works.” Indeed:

These addresses are beautifully constructed in their rhetorical expression and logical development, as satisfying to read as they must have been to hear. There’s a warm lucidity about Scalia’s writing that nicely complements the oral form: He’s always clear but treats his readers as people, not reasoning machines; his aim is to express his argument as cleanly and efficiently as he can, but he’s happy to stop and ensure you’re following the logic. And happy to crack a joke, too. Scalia’s wit is legendary, but I was unprepared to laugh as much as I did. One example of many, on the absence of “soccer moms” in the Brooklyn of his youth: “There were no soccer moms because there was no soccer,” he writes. “Americans overwhelmingly preferred baseball, a game in which a lot of players stand around while not much happens, to soccer, a game in which people run back and forth furiously while not much happens.” There are people who write jokes for a living who’d consider that their best work. [Emphasis added.]

Swaim’s discovery that he enjoyed Scalia Speaks far more than he expected to is, I’m pleased to say, an observation I’ve received from several other early readers, including some jaded Supreme Court reporters who wouldn’t have counted themselves among Scalia’s biggest fans.

So do yourself a favor, and buy Scalia Speaks now.

This Day in Liberal Judicial Activism—September 29

by Ed Whelan

1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”