The James Wilson Foundation on Natural Rights and the American Founding

Does the Court Have the Final Word? – Mark L. Movsesian in Law & Liberty

by James Wilson Institute on October 6, 2020
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In this article, Mark L. Movsesian reviews Louis Fisher’s new book: Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution. Professor Movsesian writes about the author’s goal to demolish the “myth” of judicial supremacy. He agrees with Louis Fisher’s argument against judicial supremacy since the Supreme Court’s decision can be reversed the American public or the President and Congress can decline to go along with Court ruling. However, Professor Movsesian recognizes two major flaws of the book. an overbroad definition of judicial finality and an insufficient explanation of why judicial supremacy is dangerous. While Fisher is right to counsel caution against judicial supremacy, his arguments were not fully fleshed out as to why. Movsesian concludes that the book is a valuable contribution to the literature on the topic, but could have been more valuable still.

Some excerpts from this article:

Federal judges, legal scholars, and reporters, 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.

“Equating constitutional law with the Supreme Court… is not healthy for democracy, the Court, or the rule of law.

The book suffers from two flaws. First, Fisher critiques a version of judicial finality—judicial “supremacy” is the term commentators typically use—that is so expansive that even most supporters would reject it. Many examples he gives to refute judicial supremacy are, in fact, consistent with the doctrine, properly understood. Second, Fisher does not sufficiently explain why he thinks judicial supremacy is so dangerous, nor why so many people, historically and now, have thought that judicial supremacy is, at least most of the time, a good thing. 

Many of the historical examples Fisher offers to demonstrate that judicial supremacy is a myth involve situations where the Court simply changed its mind, or where the American people amended the Constitution.

This is not to say that judicial supremacy is always a good idea. Fisher is right to counsel caution in embracing the doctrine.

Read the complete article here.

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790