Vol. 30 No. 2 (February 2020) pp. 18-24RECONSIDERING JUDICIAL FINALITY: WHY THE SUPREME COURT IS NOT THE LAST WORD ON THE CONSTITUTION, by Louis Fisher. University Press of Kansas, 2019. 288pp. Cloth $45.00. ISBN: 978-0700628100.
Reviewed by Esra Gules-Guctas, Department of Political Science, Rockefeller College of Public Affairs & Policy, State University of New York at Albany. Email: egules-guctas@albany.edu.
Conventional wisdom holds that when the "Supreme Court has spoken," the conversation must end. Judicial finality is often cited to point out that the Supreme Court of the United States has established supremacy over contested constitutional questions. Yet the notion of unaccountable judicial elites having the final say on constitutional meaning remains subject to considerable debate. The spectrum of scholarly opinion ranges from those who maintain that “practice has now settled” (Dworkin, 1996) and “we live in a world of judicial supremacy,”( Freidman and Delaney, 2011) to those who lament that that “everyone nowadays seems willing to accept the [Supreme] Court’s word as final”(Kramer, 2004).
In RECONSIDERING JUDICIAL FINALITY, Fisher explores whether the Supreme Court does in fact speak the irrefutable last word. After examining the historical record from 1789 to the present day, he finds that Court decisions are anything but final. Contrary to conventional wisdom, the Court’s rulings did not put an end to constitutional dialogues in many disputes. He concludes that “the doctrine of judicial finality often attains the status of myth: a belief widely held to be true but lacking any factual basis” (p. xi). Fisher presents a compelling analysis that demonstrates that the Supreme Court decisions have been regularly challenged in extensive array of disputes. The author devotes a separate chapter for the disputes on the slavery, civil rights and women’s rights, regulating commerce, the sole-organ doctrine, privacy, religious liberty, the Japanese-American cases, the state secrets doctrine, legislative vetoes and campaign finance. According to Fisher, decisions by the Supreme Court lack finality in part “because human institutions, including the judiciary, are prone to miscalculation and error” (p. xi).
The crux of Fisher’s argument in RECONSIDERING JUDICIAL FINALITY is that by no means does the Court always gets its way. Furthermore, the preoccupation with the notion of judicial finality has become a set of theoretical blinders, rendering the fact that the Court shares the field of constitutional authority with other [*19] institutional actors invisible. One of the key contributions of RECONSIDERING JUDICIAL FINALITY is how it persuasively demonstrates that despite the prevailing assumptions, the process of constitutional interpretation is not a judicial monopoly but rather a broad and continuing dialogue. In this regard, RECONSIDERING JUDICIAL FINALITY invaluably draws attention to what has been missing from the debate on the desirability of having a judiciary with the final say on constitutional meaning. Participants in the debate dispute whether an imperial judiciary with the power to have the final say is necessary, but not whether the Court actually has the irrefutable final say. In other words, scholars who juxtapose the Court’s power against Congress have erroneously overemphasized the Court’s dominance while unduly minimizing the constitutional decision-making by Congress.
Readers familiar with Fisher’s previous scholarly contributions can easily recognize that RECONSIDERING JUDICIAL FINALITY shares a common theme of unveiling the myriad ways in which the political branches actually do influence constitutional meaning and how independent interpretation by elected branches has been the norm in our political order (see e.g., Fisher, 1978, 1985, 1988, 2016, 2018). In accordance with his previous works, RECONSIDERING JUDICIAL FINALITY demonstrates that Congress often challenges the limits of the Supreme Court decisions.
I concur with Fisher’s claim that the constitutional vision of the judiciary always triumphing is not empirically accurate. As he explains, the process of constitutional interpretation is much more fluid than generally assumed. However, with any book of such scope a reviewer can find numerous occasions to quibble. And I do have a few quibbles, primary of which is an objection to Fisher's framing of legislative-judiciary relations through a primarily conflictual lens. Looking only at cases in which the Court’s decisions have been challenged and reversed captures a relatively small proportion of interactions between the judiciary and the political actors. In fact, attaching too much weight to the Court’s conflict with elected branches minimizes observations of cooperation (explicit and tacit) between them. Ample scholarly work demonstrates that judicial review can actually help legislators advance their political agendas rather than hindering the exercise of legislative power; in fact the Court’s authority to settle constitutional disputes often expands as a result of the willful empowerment of the judiciary by actors in other branches (see e.g. Graber 1993; Whittington 2009). [*20]
Although, Fisher acknowledges that the constitutional interpretation is a broad and continuing dialogue between the elected branches, he nevertheless frames his argument mainly in the context of recurring conflict between the Court and the Congress. RECONSIDERING JUDICIAL FINALITY conjures an image of aloof judges whose opinions are presented on a political tabula rasa. Their record of opinions is characterized by repeated “failure to uphold personal rights” (pp. 45, 61, 73). Congress on the other hand, is presented as “the last safeguard” of individual rights,” (p. 98) “responding to judicial errors and misconceptions that damaged individual rights and the Court’s own reputation” (p. 40).
However, a robust body of literature shows that the dynamic relationship between the two branches is more complex than one would gather from reading RECONSIDERING JUDICIAL FINALITY. Fisher’s account treats the Court not as an institution but as a conglomeration of policymaking judges, underestimating the effect of institutional constraints on the Court. However, judicial review does not occur in a political or ideological vacuum. As many students of the Court have recognized, judicial power is both more fragile and more closely tied to the interests of elected branches than is commonly assumed. For instance, based on his extensive analysis of litigation on affirmative action Stohler (2019) points out that “there is simply too much evidence indicating that judges repeatedly conceded to the views of elected counterparts” (Stohler, 2019: 61). As Lemieux (2017) demonstrates, when justices declare laws unconstitutional “they are almost always supported by some members of the governing majority on the front end (as elected officials, as well as groups allied with the governing coalition are responsible for generating constitutional arguments for courts to resolve) or the back end (as elected officials can prevent efforts to attack the decision or court through ordinary legislation)” (Lemieux, 2017: 1068).
According to Fisher, the illusion of judicial finality exists despite the elected branches’ interests. My point of divergence is that judicial finality is contingent and remains dependent on choices made by other political actors. The Supreme Court’s decisions remain final when it allows legislators to nullify accountability for issues that “remain much more in their control than is sometimes assumed” (Lemieux, 2017). For instance, Graber (1993) shows that many elected officials, “took steps to ensure that ROE V. WADE would remain in the courts so that they would not be forced to support either prolife or prochoice positions in legislative and electoral forums” (Graber, 1993:56). This in turn suggests that the illusion of [*21] judicial finality exists not despite the elected branches’ interests but rather because of them.
I also have a reservation with Fisher’s assertion that legislators are more reliable protectors of unpopular minorities. Although the book seeks to dispel “the myth of judicial finality,” Fisher further contends that the belief that courts are reliable protectors of individual rights is misguided. Based on his examination of the Court’s record, Fisher concludes that the courts cannot be trustworthy champions of unpopular minorities or catalysts of change despite the contrary expectations. Instead, he suggests that Congress and the state legislatures have often guarded minority rights and civil liberties more reliably than the Supreme Court. According to Fisher, decisions by the Supreme Court after the Civil War “repeatedly underscored its failure to uphold personal rights. Individuals seeking protection from the Court lost on a regular basis. Gradually they learned, as with women seeking to enter professions historically assigned to men, that their interests were better protected by legislative bodies, at both the state and national levels” (p. 61).
Fisher provides ample evidence that discrete and insular minorities fare better in the legislative process than in the judicial process alone. Hence, he points out that on many occasions, “the last safeguard has been Congress and the legislative process” (pp. 98, 155). However, he benchmarks his analysis based on an idealized image of the legislative process and assumes that because the elected branches occasionally protect liberties, they always can be trusted to do so. Fisher’s account neglects some contrary evidence which indicates that the elected branches, just as the Court, have a mixed record on protecting rights. For instance, Fisher points out that “the rights of blacks were supported far better through legislative efforts than through judicial action” (p. 45). Conversely, one could also argue that if the rights of minorities had been left largely to the whims of the political majority, discriminatory practices such as enforcing segregation throughout the South likely would have persisted “long beyond their invalidation by the Supreme Court” (Chemerinsky, 2016). Fisher points out that “in response to congressional efforts to implement the Civil War Amendments, the Supreme Court repeatedly undermined efforts to protect the rights of blacks” (pp. 45-48). However, based on her powerful examination of the Court’s role in the transition from Reconstruction to Jim Crow, Brandwein (2011) presents a strong case that rather than the Supreme Court’s lack of leadership in civil rights enforcement, the onus of responsibility for abandonment of the civil rights of blacks falls largely on the failure of the legislative and executive branches. Substantial rights expansions tend to occur [*22] more through collaboration among the branches rather than by one branch acting alone.
The Supreme Court certainly has a less than stellar record of protecting individual rights. My reservation about Fisher’s argument is that understanding the Court’s role should not be reduced to the desired ideal outcomes. For example, Fisher notes that advances in women’s rights came “primarily from the elected branches, demonstrating a much greater capacity than courts to understand and to remedy sex discrimination” (p. 73). On the other hand, McCann’s extensive examination of pay equity litigation explains that even when the courts do not serve as countermajoritarian heroes, litigation provides activists with a vehicle for challenging a firmly entrenched status quo (McCann, 1994). For instance, court-transmitted signals of social discontent may provide elected officials a valuable assessment of the harmony between legal rules and community needs. In fact, one of the comparative advantages of litigation over the efforts for policy change via electoral mechanisms is that court disputes amplify minority claims and make them visible and audible in a way that would not be possible through the conventional legislative process (Zackin, 2008). This was certainly true in the case of LGBTQ rights.
In addition, the students of law and courts may quibble with Fisher’s treatment of doctrinal change. In identifying judicial errors that were later corrected, Fisher treats the process of doctrinal change as if the Justices monopolize control. However, doctrinal change is a deeply complex process that extends beyond the formal boundaries of law. As pointed out by Novkov, “shifts in legal decision-making that at first glance seem like dramatic reversals or changes upon examination often rest upon a longer-term process of reworking the ideological underpinnings of the policy or principle in question” (Novkov, 2008: 628-29).
But these are minor quibbles with an impressive, well-researched, and significant book. Fisher offers insights valuable both to those who see the Supreme Court as the sole oracle of Constitutional principles and to those who insist on taking the Constitution away from the Court. RECONSIDERING JUDICIAL FINALITY undoubtedly forces scholars to take on the judicial finality as it actually exists and enhances our understanding of the Court's role in the broader political system. Furthermore, its vivid writing and accessibility also enables it to effectively convey key information and sophisticated analysis to inform a non-academic audience. I highly recommend this book to students of law and courts as it [*23] further propels the conversation on allocation of constitutional authority.
CASES:
ROE V. WADE, 410 U.S. 113 (1973).
REFERENCES:
Brandwein, P. (2011). RETHINKING THE JUDICIAL SETTLEMENT OF RECONSTRUCTION. Cambridge University Press.
Chemerinsky, E. (2016). In Defense of Judicial Supremacy. WILLIAM AND MARY LAW REIVEW 58, 1459-1494.
Dworkin, R. (1999). FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. OUP Oxford.
Friedman, B., & Delaney, E. F. (2011). “Becoming Supreme: The Federal Foundation of Judicial Supremacy.” COLUMBIA LAW REIVEW. 111: 1137-1193.
Fisher, L. (1978). THE CONSTITUTION BETWEEN FRIENDS: CONGRESS, THE PRESIDENT, AND THE LAW. St. Martin's Press.
Fisher, L. (1984). “Constitutional Interpretation by Members of Congress.” North Carolina Law Review., 63, 707.
Fisher, L. (1988). CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PROCESS (Vol. 922). Princeton University Press.
Fisher, L. (2016). CONGRESS: PROTECTING INDIVIDUAL RIGHTS. University Press of Kansas.
Fisher, L. (2018). “The Claim of Judicial Finality: Theory Undercut by Experience.” THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW, 16(2), 29.
Graber, M. A. (1993). “The Nonmajoritarian Difficulty: Legislative Deference to The Judiciary.” STUDIES IN AMERICAN POLITICAL DEVELOPMENT, 7(1), 35-73. [*24]
Kramer, L. D. (2004). THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. Oxford University Press.
Lemieux, S. E. (2017). “Judicial Supremacy, Judicial Power, and the Finality of Constitutional Rulings.” PERSPECTIVES ON POLITICS, 15(4), 1067-1081.
McCann, M. W. (1994). RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. University of Chicago Press.
Novkov, J. (2008). “Law and Political Ideologies.” In THE OXFORD HANDBOOK OF LAW AND POLITICS.
Stohler, S. (2019). RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES. Cambridge University Press.
Whittington, K. E. (2009). POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN US HISTORY. (Vol. 105). Princeton University Press.
Zackin, E. (2008). “Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts.” LAW & SOCIETY REVIEW, 42(2), 367-396.
© Copyright 2020 by the author, Esra Gules-Guctas.
