Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the "unalterable fact," as Chief Justice Rehnquist once remarked, "that our judicial system, like the human beings who administer it, is fallible." And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court's decisions have, of course, been challenged and reversed in numerous cases-involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings-and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Court's decision in Citizens United, Fisher's work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history. The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court's nine justices as democracy's last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government-and, finally, to the American people.
Louis Fisher is scholar in residence at The Constitution Project in Washington, D.C., and visiting scholar at the William and Mary Law School. From 1970 to 2010 he served in the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library. His many books include Constitutional Conflicts between Congress and the President, Sixth Edition, Revised; Presidential War Power, Third Edition, Revised; Military Tribunals and Presidential Power, winner of the Richard E. Neustadt Award; and Supreme Court Expansion of Presidential Power, all from Kansas.
Preface Note on Citations 1. Early Claims of Judicial Finality -Debating Judicial Review -Who Has the Final Word? -Influence of John Marshall -William Marbury's Lawsuit -Additional Lessons -Reflections on Marbury -Continuing Debate 2. Selections by Chief Justice Hughes -Dred Scott's Case -Reactions to Dred Scott -Legal Tender Cases -Income Tax Cases 3. Rights of Blacks -Opposition to Slavery -The Civil War -Congressional Safeguards, Judicial Opposition -Access to Public Facilities -"Separate but Equal" Doctrine -Brown v. Board -The Civil Rights Act of 1964 -Judicial Resort to Busing -A Continuing Dialogue 4. Rights of Women -Doctrine of Coverture -Myra Bradwell's Initiatives -Belva Lockwood Goes to Congress -Judicial Rulings from 1875 to 1971 -Equal Rights Amendment -Equal Pay for Women -Equal Pay for Women -Lilly Ledbetter Seeks Justice -Additional Disputes 5. Regulating Commerce -Wheeling Bridge Cases -Controls on Intoxicating Liquors -Liberty of Contract -Congress and Child Labor -Court-Packing Plan -Child Labor Returns 6. The Sole-Organ Doctrine -Problems with Dicta -The Issue inCurtiss-Wright -Treaty Negotiation -Marshall's Sole-Organ Speech -Jerusalem Passport Case -The Supreme Court's Opinion -Creating a New Presidential Model 7. Privacy Rights -Mandatory Sterilization -Defining Obscenity -Use of Contraceptives -Abortion Rights -Reexamining Roe 8. Religious Liberty -Protecting Minority Rights -Forming Constitutional Principles -Military Chaplains -Quakers and Military Service -Compulsory Flag Salutes -The Yarmulke Case 9. Japanese-American Cases -Roosevelt's Executive Order -Detention Camps -Evaluating the Court -Fraud Against the Court -Analysis by Peter Irons -Acknowledging Judicial Error 10. State Secrets Privilege -Aaron Burr's Trial -Civil War Precedent -Three Widows in Court -At the Appellate Level -The Supreme Court Decides -Fraud Against the Court -Contemporary Issues 11. Legislative Vetoes -Origins of the Legislative Veto -Presidential Reorganization Authority -"Come into Agreement" Provisions -Challenges by President Carter -INS v. Chadha -Legislative Vetoes After Chadha -Presidential Signing Statements -Some Lessons 23. Campaign Finance -Sources of Judicial Error -Congressional Legislation -Continued Errors about Santa Clara -Buckley v. Valeo -Judicial Attacks on Buckley -Citizens United -Responses to Citizens United Conclusions About the Author Index of Cases Index of Subjects
In a field crowded with book-length studies of judicial review and the finality of Supreme Court decisions, Louis Fisher has something new and important to say. In Reconsidering Judicial Finality he demonstrates that judicial review is not the only means by which the meaning of the Constitution can by ascertained, and that the Court is not always the final authority on the meaning of the law. Fisher's account of the ways in which Court finality has been contested will prove attractive to general readers and to scholars of constitutional law, legal history, and American politics." - Peter Charles Hoffer, coauthor of The Supreme Court: An Essential History, Second Edition"For the same reasons that it distributes substantive governmental power across multiple federal and state institutions, the US Constitution also divides interpretative power across institutions; Congress, the president, the states, and the people all contribute to the development of constitutional law along with the Supreme Court. In Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution, Louis Fisher, with his characteristic sweep and erudition, shows how all institutions of government engage in the enterprise of constitutional interpretation-and how they do so with widely varying skill and results that do not always reflect well on the federal courts. Covering more than two centuries of practice across a dozen different topics, this book should help put an end to the strangely enduring myth of judicial supremacy in constitutional interpretation." - Gary Lawson, coauthor of "A Great Power of Attorney": Understanding the Fiduciary Constitution "Louis Fisher's most recent book provides a characteristically thorough and thoughtful argument for the shared nature of constitutional interpretation. In heated political times, Reconsidering Judicial Finality serves as a valuable reminder that American constitutionalism is and has been a collective effort fueled not only by the Supreme Court but also by the political branches and, more often than typically understood, by the people themselves." - Louis J. Virelli III, author of Disqualifying the High Court: Supreme Court Recusal and the Constitution
