Justice Sotomayor's Flawed History To Promote The Myth of Judicial Supremacy - Josh Blackman //Reason - The Volokh Conspiracy

Josh Blackman is a young conservative star law professor who writes often and provocatively at Reason which hosts The Volokh Conspiracy - a platform for Federalist Society thinkers begun by UCLA law prof Eugene Volokh..

Blackman's thesis is the Supreme Court if the past sixty years has been profoundly mistaken in its expansion of judicial power.  He lambastes the "Imperial Judiciary" which has given us the liberty rights to contraception, non-discriminatory hotels, biracial, and gender free marriage, and the right to terminate a pregnancy in its early stages.

But Blackman no harsh words for the construction of the Affordable Care Act as beyond congressional power to regulate interstate commerce.  There every conservative member of the Supreme Court - including John Roberts - held that Congress is powerless of impose n insurance requirement on un-consenting persons.  He alone among the high court's conservatives found the penalty for failure to purchase health insurance to be a tax within the federal government's power.

Instead his anger extends to Cooper v. Aaron in which Arkansas was in 1958 compelled to obey the orders of the United States District Court to implement a non-discrimination plan for the Little Rock, Arkansas Central High School. - GWC

Justice Sotomayor's Flawed History To Promote The Myth of Judicial Supremacy

by Josh Blackman

The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Supreme Court opinions are not included in that list. Cooper v. Aaron, however, elevated decisions of the Court to the "supreme Law of the Land." Regrettably, three members of the Supreme Court embrace this myth of judicial supremacy.

In Whole Woman's Health v. Jackson, Justice Sotomayor wrote a partial-dissent that was joined by Justices Breyer and Kagan. She committed the cardinal sin of judicial supremacy--conflating actual federal law with a decision of the Supreme Court. Even worse, she distorted the history leading up the Civil War to perpetuate this myth. All in the span of a paragraph.

[S.B. 8] is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to "veto" or "nullif[y]" any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case's companion: "The Supreme Court's interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions." Reply Brief for Intervenors in No. 21–50949 (CA5), p. 4.  The Nation fought a Civil War over that proposition, but Calhoun's theories were not extinguished. 

Calhoun asserted the power to nullify federal statutes--acts of Congress that are, pursuant to the Supremacy Clause, the supreme law of the land. Texas has not purported the power to nullify any federal statute. Justice Sotomayor derisively quotes from Jonathan Mitchell's brief. But this genius is emphatically correct: Roe v. Wade and related precedents are not part of the supreme law of the land. They are merely opinions of the Justices who wrote them--and lousy opinions at that.