Does the Court Have the Final Word?
Law & Liberty
In Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution, Louis Fisher sets out to demolish the “myth” of judicial supremacy. “Federal judges, legal scholars, and reporters,” he writes, “frequently claim that when the Supreme Court issues a constitutional decision it remains final unless the Court changes its mind or the Constitution is amended to reverse the Court.” Fisher argues that this view is “plain error.” To back his claim, he offers numerous historical examples in which the President and Congress have declined to go along with Court rulings or in which the American public has pressured the Court to reverse itself over time. This is all to the good, he argues, since the Constitution does not require other state actors or the public to accede to the Court’s understanding of constitutional provisions and since resistance has often helped the Court find the right path. “Equating constitutional law with the Supreme Court,” he writes, “is not healthy for democracy, the Court, or the rule of law.”