Two Important Supreme Court Anniversaries for 2008:
The Cases of Trop v. Dulles, Concerning Citizenship, and Cooper v. Aaron, Concerning Civil Rights Enforcement

By EDWARD LAZARUS

Thursday, Jan. 03, 2008

The turning of a New Year goes hand in hand with a new set of anniversaries to be recalled and reflected upon. Supreme Court history will yield a number of these, including, in 2008, the 50th Anniversary of Trop v. Dulles and Cooper v. Aaron.

Both cases were very much products of the great issues of their day. And both have transcended their particular contexts (though these contexts were and are significant in themselves) to importantly shape the modern history of the Court.

Trop v. Dulles: Can a Military Deserter Lose His Citizenship? Chief Justice Earl Warren's Evolving Interpretation of the Eighth Amendment

At issue in Trop v. Dulles was whether Congress had the power to take away the citizenship of a person convicted for desertion during wartime. By a 5-4 vote, the Court ruled that Congress had no such power.

Writing for himself and three others, Chief Justice Earl Warren ruled that denaturalization - "the total destruction of the individual's status in organized society" - was a Cruel and Unusual Punishment prohibited by the Eighth Amendment. According to Warren, the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" - and those standards of decency forbade Congress from stripping someone involuntarily of their citizenship.

Interestingly, Justice William Brennan deprived Warren of a majority for his position. Brennan concurred separately on the narrower ground that taking away citizenship for desertion during wartime was not a rational exercise of Congress's war powers - and, accordingly, was beyond Congress's authority - and thus had no reason to reach the Eighth Amendment issue raised.

But even if Warren's rationale did not command a majority, his approach to defining the Eighth Amendment - the idea the its meaning would evolve over time, and could be determined according to contemporary morality -- became emblematic of an entire way of thinking about the Constitution. Indeed, no decision more perfectly captures the idea of a "living Constitution" - the idea of a charter that each generation must interpret in light of its own felt necessities - than Trop.

In this sense, Trop was a harbinger of the Warren Court's dramatic expansion of civil rights and civil liberties, for it took a fresh, contemporary look at the constitutional promises of due process and equal protection. And by the same token, Trop is appropriately viewed as a main source for the great liberal/conservative juridical debate of the modern era, between those who defend Warren's concept of a living Constitution, and those who view Warren's "evolving" constitutional standards as a license for judicial overreaching and would instead interpret the Constitution according to the original intent of the Framers.

Nor is the import of Trop confined to the theoretical. On January 7, 2008, the Supreme Court will hear argument in Baze v. Rees, which poses the issue of whether the lethal injection protocols used by three dozen states to carry out the death penalty violate the Eighth Amendment because they involve a substantial risk of inflicting gratuitous pain.

In deciding this question, a central issue dividing the justices is sure to be whether the Court should continue to use the Trop standard for interpreting the Eighth Amendment and, if the standard is used, what sources and methods the Court should use to determine the contours of our "evolving" standards of decency.

Cooper v. Aaron: Civil Rights in Practice, Not Just In Principle

Cooper v. Aaron, meanwhile, remains no less vital than Trop. In 1957, Arkansas Governor Orville Faubus decided to defy the Supreme Court's decision in Brown v. Board of Education and prevent the desegregation of Little Rock's public schools. To this end, Faubus ordered the Arkansas National Guard to prevent the desegregation of Little Rock Central High School, where nine African-American children were set to enroll.

Faubus eventually withdrew the Guard, and the nine students entered the school. But they were soon forced to withdraw in the face of an angry and dangerous mob. The next day, President Eisenhower dispatched paratroopers to protect the students and enforce the desegregation mandate of Brown - and thus, the African-American children went to school, albeit amidst terrible tension, until the summer recess began.

As soon as the school term ended, the local school board sought and obtained a two-and-a-half year delay on desegregation, ostensibly to allow for a more peaceful transition to integrated classrooms.

The Supreme Court, however, would have none of it. In a unanimous decision signed individually by each justice for emphasis, the Court held that the requested delay in desegregating Little Rock's schools would deprive the African-American schoolchildren of their rights under the Equal Protection Clause. Thus, no delay could be permitted - and, the Court made sure to add, no governor had the right to act otherwise.

Cooper was a landmark decision for many reasons. Both the decision itself and the Justices' collective decision each to sign the opinion demonstrated the Court's resolve to stand by Brown and enforce its mandate of racial equality, regardless of backlash and controversy.

Over the decades, the meaning of Brown has been much debated, as have many issues related to the continuing problem of how to achieve genuinely desegregated schools. It's been a rocky road as the Court has moved from old battles against state-sponsored segregation into newer disputes over busing, affirmative action, and other remedial programs. And the road has by no means reached its end. Only this past Term, in fact, a sharply-divided Court declared unconstitutional two pupil assignment plans that school districts had adopted to preserve racial balance in their classrooms.

But if Cooper only represented the beginning of this continuing journey, it nonetheless put to rest once and for all the notion that Brown might somehow be a temporary feature of American law, or that the Court would retreat from its basic premises in the face of resistance.

Cooper and the Growth of the Supreme Court's Power

Cooper has also played an extraordinarily important role in the growth of the Supreme Court's power in national politics.

As early as Marbury v. Madison, Chief Justice John Marshall declared that, "it is emphatically the province and duty of the judicial department to say what the law is." But it is only in the modern era that the Court has seemingly arrogated to itself the power to be the immutable last word on the meaning of the Constitution.

Cooper surely must be seen as an important milestone in this accretion of judicial power. From the Court's perspective, one key goal in Cooper was to make a statement against southern defiance of Brown. And in that context, it was altogether appropriate to invoke Marbury's declaration of judicial power when defending the Court's authority to enforce Brown's mandate.

But over time, the Marbury/Cooper declaration of judicial power has taken on something of a life of its own. In Marbury, the Court was, in effect, regulating itself. It struck down a congressional statute giving the judiciary more power than was permitted under the Constitution. Strictly speaking, then, Chief Justice Marshall's opinion declared the Court to be the ultimate arbiter of the law only with regard to those laws governing the judiciary - and not necessarily for all laws and all circumstances. Similarly, in Cooper the Court was technically declaring its superiority to state officials in interpreting the Constitution alone - a legal relationship enshrined in the Supremacy Clause.

Such limits, however, no longer hold sway at the Court. In City of Boerne v. Flores, for example, the Court has invoked the Marbury/Cooper line to declare the Congress - its co-equal branch - has no power to grant greater legal protection to the practice of religion than the Court itself deemed Constitutionally-required. Now, when it comes to the meaning of the Constitution, the Justices view themselves not only as the final authority in the temporal sense of having the final say, but also as the only authority in an absolute sense.

Cooper did not create this state of affairs. But it must be viewed as one foundation stone for the Court's current view of itself.

Who knows what the next 50 years will bring? It would not be a shock, however, if the legacies of Trop and Cooper were still relevant then. Here's to a Happy New Year and all of us being around in 2058 to find out.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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