This Day in Supreme Court History—September 29, 1958

On this day in 1958, the Supreme Court issued its opinion in Cooper v. Aaron, a case involving efforts to desegregate schools in Little Rock, Arkansas. The situation in Little Rock had escalated from a local struggle over whether black children would be allowed to attend a previously all-white high school into a national constitutional crisis involving fundamental questions about the supremacy of the Supreme Court on questions of constitutional interpretation and the authority of the federal government over the states.

Local officials in Little Rock had initially indicated a willingness to accept the Supreme Court’s 1954 ruling in Brown v. Board of Education, which struck down state-mandated racial segregation in schools. State-level politicians, led by Arkansas Governor Orval Faubus, decided to follow the path being taken by most other states in the South and mobilized in opposition to Brown. The Arkansas state legislature amended the state constitution with language denouncing Brown and asserting the right of the state to defy its requirements. The legislature then passed a law that allowed parents to opt out of sending their children to integrated schools. The day before Little Rock was to begin its desegregation process in the fall of 1957, Faubus ordered the National Guard to surround Central High School, saying “blood would run in the streets” if black students tried to enter the school.

William Cooper and other members of the Little Rock school board then went to federal court asking for a suspension of the board’s own integration plan. The federal judge ruled in the school board’s favor. Thurgood Marshall and his team of lawyers at the NAACP’s Legal Defense Fund appealed the decision to the Eighth Circuit, which overturned the lower court ruling. Nine African American students—known to history as the Little Rock Nine—would attend Central High School during the 1957-58 school year under the protection of U.S. army troops. Cooper then appealed the case to the Supreme Court, which convened in a special session in the summer of 1958 to hear the case before the next school year began. (Listen to the oral arguments here.)

On September 12, a day after the completion of oral arguments at the Supreme Court and just days before the new school year was scheduled to begin in Little Rock, the Court unanimously ruled that there would be no more delays and that Little Rock had to continue ahead with its desegregation plan.

Governor Faubus responded by ordering closed all four high schools in Little Rock. The measure was necessary, he explained, “in order to avoid the impending violence and disorder which would occur, and to preserve the peace of the community.” The schools would remain closed for almost a year.

The Supreme Court’s reasoning came later in the month. On September 29, the Court released a unanimous opinion to which each of the nine justices signed his name—an unprecedented step designed to emphasize the unity of the Court, which included two justices who had come to the Court after Brown.

Much of the opinion—which was largely drafted by Justice William Brennan—focuses on the particular issues involved with the desegregation of the Little Rock schools. The opinion reiterates the justices’ commitment the interpretation of the Fourteenth Amendment that the Court had committed itself in Brown. But the concluding section of the opinion turns to the larger issue of the case, offering the Court’s refutation of “the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case.”  This section of the opinion offers a remarkable mixture of uncontroversial constitutional truisms and bold, novel assertions of judicial authority. The Court noted that under Article VI of the Constitution, the Constitution is the “supreme law of the land.” The Court also approvingly referenced the words of  Chief Justice John Marshall’s famous 1803 ruling in Marbury v. Madison, in which he declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Building from all these relatively uncontroversial pieces of constitutional text and Supreme Court doctrine, the Court concluded that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” The move the Court made here is worth noting. The Court blended the principle of constitutional supremacy and the idea that the Court’s primary role is legal interpretation to craft a claim for judicial interpretive supremacy. It is not just the Constitution that is supreme, but the Court’s interpretation of the Constitution that is supreme. At the time, most saw this bold assertion on the part of the Court as justified in the context of the struggle to implement Brown. But these lines from Cooper had–and still have–their critics, who wonder whether the Court may have gone too far in proclaiming itself the supreme interpreter of a document that proclaims itself to be the voice of We the People.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Christopher Schmidt.

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