Re: Cooper Redux? (Re: Marshall & Upholding Federal Statutes)

[Eastman, John]

Title: Message

Let's make the Alabama case a more appropriate hypothetical.  Suppose that the Alabama Supreme Court had ruled (rather than Chief Justice Moore simply asserting) that the monument was not a violation of the Establishment Clause.  Marbury simply holds that it is the province of the courts to say what the law is, but that applies as much to state courts as to federal courts.  Cooper v. Aaron stands only for the added proposition that federal courts can so say to state executive officials.  But can a lower federal court tell a state supreme court what the law is, or is that privilege reserved to the U.S. Supreme Court?  I am mindful, of course, of my own recent argument to the contrary (perhaps) in the Nevada cases (Angle v. Legislature), but I am very interested in what others on this list think about the federalism issues here, wholly apart from the merits of the Establishment Clause claim.   John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Parry, John [mailto:[EMAIL PROTECTED] Sent: Friday, August 15, 2003 9:23 AM To: [EMAIL PROTECTED] Subject: Cooper Redux? (Re: Marshall & Upholding Federal Statutes) With all of this discussion of the difference between nullifying a statute and refusing to give effect to it, I wonder how list members analyze Alabama Chief Justice Moore's announcement that he will not obey a federal court order requiring removal of a ten commandments monument?  The federal courts have engaged in judicial review (of an essentially administrative order or regulation, not a statute) but are unable to "nullify" Judge Moore's conduct on their own.  (Anyone expect President Bush to offer assistance?)     John T. Parry Associate Professor of Law University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 412-648-7006