When the Supreme Court decides a constitutional issue, is that the final word unless the Court alters its position? Although that position is generally taught in law schools and in political science and history departments, what emerges is a more complex and ongoing dialogue among all three branches of the national government, the states, scholars, and the general public. Nothing in the history of more than two centuries supports the view that when the Supreme Court decides a constitutional issue its ruling is final. Chief Justice William Rehnquist put the matter bluntly in Herrera v. Collins (1993): “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”
The notion of judicial supremacy appears in a decision by Chief Justice John Marshall in McCulloch v. Maryland (1819), which held that Congress possessed an implied power to create a national bank. He said if the case had to be decided “by this tribunal alone can the decision be made.” On the Supreme Court “has the constitution of our country devolved this important duty.” McCulloch did not prevent Congress or the President in future years from reaching a separate judgment about this issue. On July 10, 1832, President Andrew Jackson vetoed a bill to revive the Bank, even though advocates of the Bank maintained that its constitutionality had been settled by the Court. He reviewed the legislative history of the Bank: Congress favoring it in 1791, voting against it in 1811 and 1815, and supporting it in 1816. As to McCulloch, it “ought not to control the coordinate authorities of this government.” Congress did not override his veto.
This type of constitutional dialogue continues. One example concerns legislation passed by Congress in 1916 to regulate child labor in interstate commerce. Two years later a 5-4 Supreme Court in Hammer v. Dagenhart held the statute to be unconstitutional. Undeterred, Congress turned to the taxing power to regulate child labor. In Bailey v. Drexel Furniture Co. (1922), an 8-1 Court struck that down. Final word? Not at all. Congress proposed a constitutional amendment to give it authority to regulate child labor but couldn’t get enough states to ratify it. Time for Congress to give up? No. In 1938, Congress passed legislation to regulate child labor, returning to its authority over interstate commerce. Relying on Hammer v. Dagenhart, a district court held the statute to be unconstitutional. However, in United States v. Darby (1941) the Court not only upheld the new statute but did so unanimously. The Court now held that Hammer v. Dagenhart “was novel when made and unsupported by any provision of the Constitution.” One of its previous decisions had zero support in the Constitution! The Court held that judgments on what goods to exclude from interstate commerce are reserved to the elected branches, not the judiciary.
A similar pattern emerges with litigation on compulsory flag salutes. In Minersville School District v. Gobitis (1940), a Supreme Court decision upheld a Pennsylvania law that required Jehovah’s Witnesses to salute the American flag. They objected that the flag salute violated express language in Exodus 20: 4-5: “Thou shalt not make unto thee any graven image” or force individuals to “bow down” to it. Although the decision was 8-1, it was heavily criticized by newspapers, religious organizations, and legal experts. Several months after the decision, three of the eight Justices (Hugo Black, William Douglas, and Frank Murphy) shared their concerns and misgivings with Frankfurter. He asked whether they had been re-reading the Constitution. No, they answered. They had been reading the newspapers. Two years later, the three Justices in Jones v. Opelika announced that the 1940 ruling was unconstitutional. The margin now dropped from 8-1 to 5-4. Two Justices in the majority retired and were replaced by Justices who regarded the 1940 ruling as unacceptable. In West Virginia State Board of Education v. Barnette (1943), a 5-4 Court overturned the 1940 ruling.
In Brown v. Allen (1953), Justice Robert Jackson promoted the doctrine of judicial finality with this statement: “We are not final because we are infallible, but we are infallible only because we are final.” Perhaps a clever and witty turn of phrase, but at no time has the Supreme Court been either final or infallible. The person who should have known that is Robert Jackson. He understood that in 1940 the Court upheld a compulsory flag-salute with a majority ruling of 8 to 1. Too lop-sided to be reversed? It was reversed three years later by a 5-4 Court. The person who wrote the 1943 decision? Robert Jackson.
Corrections in constitutional positions are often required to take account of shifts in public attitudes. In The Least Dangerous Branch (1962), Alexander Bickel noted that the process of developing constitutional values in a democratic society “is evolved conversationally not perfected unilaterally.” Ruth Bader Ginsburg underscored that understanding on July 30, 1993 when she appeared before the Senate Judiciary Committee after being nominated to the Supreme Court: “Justices do not guard constitutional right alone. Courts share that profound responsibility with Congress, the President, the states, and the people.”
We are generally taught that judicial bodies, not the elected branches, are best suited to protect individual rights. It is frequently said that legislative bodies, guided by majority vote, are less able to provide safeguards to minority interests, including those of religious belief. When we examine the historical record, it is difficult to locate judicial rulings that consistently uphold individual rights. The protection of blacks, women, children, minorities, and religious groups found support not from the judiciary but from the elected branches. It might seem reasonable to concluded that a majoritarian institution like Congress cannot be trusted to protect minorities, but history does not follow logic.
For more than two centuries, American legislatures have offered protection to many minority rights. An example of the political process protecting religious liberty better than the judiciary is how Congress responded to a 1986 Supreme Court decision that upheld an Air Force regulation that prohibited an observant Jew in the military from wearing a skullcap (yarmulke) while on duty. Over a period of three and a half years, Simcha Goldman wore his yarmulke while in uniform without any difficulty.
Yet on May 8, 1981, the Air Force informed him that wearing a yarmulke violated the military dress code. He was threatened with court martial if he continued to wear a yarmulke while in uniform. Goldman’s attorney went to court to protect his religious freedom. After action in the lower courts, the Supreme Court on January 14, 1986 held oral argument to consider the constitutional issue. Kathryn Oberly of the Justice Department advised the Court to stay out of the battle and leave the dispute to the elected branches. Divided 5-4, the Court held in Goldman v. Weinberger (1986) that the First Amendment did not prohibit the Air Force regulation. To the Court, the military values of uniformity, hierarchy, unity, discipline, and obedience justified the regulation.
There was never a doubt that Congress possessed authority to tell the Air Force to change its regulation. Article I, Section 8, of the Constitution provides that Congress shall “make Rules for the Government and Regulation of the land and naval Forces.” Within two weeks of the Court’s decision, legislation was introduced to permit members of the armed forces to wear neat and conservative religious apparel while in uniform provided it did not interfere with the performance of military duties. President Ronald Reagan signed the bill into law. No evidence of judicial finality.
A contemporary example of constitutional dialogue among all three branches involves equal pay for women. Lilly Ledbetter worked for Goodyear Tire from 1979 to 1998. Only in her last year did she discover that she was paid less than men for doing the same work. In her lawsuit, she prevailed before a grand jury but lost in the Eleventh Circuit for failing to file her charges in a timely manner. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), a 5-4 Supreme Court agreed with the Eleventh Circuit, stating that she should have filed her case within 180 days of each allegedly discriminatory pay action. However, she didn’t know of Goodyear’s actions until nearly two decades later.
In her dissent, joined by three colleagues, Justice Ginsburg challenged the notion of judicial finality. She pointed out that the Civil Rights Act of 1991 overturned in whole or in part nine decisions of the Supreme Court. She now advised: “Once again, the ball is in Congress’ court.” The legislative branch should pass legislation “to correct this Court’s parsimonious reading of Title VII.” Congress passed legislation a few years later, allowing women to file charges at any time. The statute held that discriminatory actions carry forth in each paycheck, allowing women to file a complaint in a timely manner for relief.
Interesting comments on judicial finality appear in Trump v. Hawaii (2018), in which a 5-4 majority upheld presidential actions regarding foreign nationals traveling to the United States. A dissenting opinion by Justice Sonia Sotomayor referred to the Japanese-American case of Korematsu v. United States (1944), a decision heavily criticized ever since it was issued. Also subject to rebuke is another Japanese-American case, Hirabayashi v. United States (1943). The majority decision by Chief Justice John Roberts in Trump v. Hawaii initially stated that whatever “rhetorical advantage” Korematsu might appear to possess “has nothing to do with this case.” Yet he proceeded to say that reference to the decision “affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history . . . .” Wrong the day it was decided but not repudiated by the Court until 2018.
In an article published in the N.Y.U. Law Review in 1962, Chief Justice Earl Warren discussed the Japanese-American cases and offered this position: “To put it another way, the fact that the Court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.” A clear denial of judicial finality. He explained that the emergency conditions of World War II prevented the judiciary from exercising the powers of an independent and coequal branch. If that was the case, it would have been better for the Court to treat the Japanese-American cases as political questions beyond the capacity of the judiciary to decide the issue. That would have been preferable to treating the government’s action as constitutional when it was not. Supreme Court decisions are entitled to respect, not adoration.
In his book, The Most Dangerous Branch (2018), David Kaplan claimed that Chief Justice Marshall in Marbury v. Madison “established that it was the court that had the last word on what the Constitution meant” and it “has been accepted wisdom ever since.” The record of the Supreme Court provides abundant evidence that it, along with the other branches, has full capacity for error. In order to retain public confidence, it is important for the Court to admit error and issue a correction.
In The Majesty of the Law (2003), Sandra Day O’Connor said that if “one looks at the history” of the Supreme Court, the country, and the Constitution “over a very long period, the relationship appears to be more of a dialogue than a series of commands.” Supreme Court rulings often trigger “intense debate by citizens . . . as it should.” A nation that “docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders.”
Louis Fisher is visiting scholar at the William and Mary Law School. From 1970 to 2010 he served at the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library of Congress. He has testified before congressional committees more than fifty times on a range of constitutional issues. Author of 32 books and more than 600 articles, many of his articles and congressional testimony are posted on his personal webpage at http://www.loufisher.org. For details on judicial finality, see his recent book on Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution (University Press of Kansas, 2019).