Guest Essayist: Louis Fisher

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Consider some recent examples of the Court admitting errors on constitutional issues.  In United States v. Curtiss-Wright (1936), the Court upheld a statute that delegated to President Franklin D. Roosevelt authority to prohibit the sale of arms in the Chaco region in South America whenever he found “it may contribute to the reestablishment of peace” between belligerents.  The Court then added extraneous language (judicial dicta), claiming that the President possesses “plenary and exclusive” power over foreign affairs and serves as the “sole organ” in external affairs.  Anyone reading the text of the Constitution would understand that the Framers did not place all power over external affairs in the President.  Clearly that power is allocated to both Congress and the President.

For the phrase “sole organ,” the Court relied on a speech given by John Marshall in 1800 when he served in the House of Representatives.  The year marked an election contest between President John Adams and Thomas Jefferson.  Supporters of Jefferson in the House wanted to either impeach or censure Adams for turning over to England an individual charged with murder.  During his defense of Adams, Marshall used this language: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The phrase “sole organ” requires close examination.  “Sole” means exclusive but what did he mean by “organ”?  Simply the President’s duty to communicate to other nations U.S. policy after it had been decided jointly by the elected branches?  Anyone reading the entire speech would understand that Marshall was not investing the President with plenary and exclusive power over external affairs.  Instead, he merely defended Adams for carrying out a provision in the Jay Treaty that allowed each country to deliver up to each other “all persons” charged with murder or forgery.  The person that Adams turned over to the British, Thomas Nash, was charged with murder.  Adams was not making foreign policy singlehandedly.  He was carrying out a treaty.  By the time Marshall completed his defense of Adams, Jeffersonians considered his argument so tightly reasoned that they dropped plans for impeachment or a censure vote.  It is evident that the Supreme Court in Curtiss-Wright merely relied on a sentence by Marshall and failed to read his entire speech to put that sentence in proper context.

Scholars immediately faulted the Supreme Court for the erroneous use of Marshall’s sole-organ speech.  However, from one decade to the next, executive agencies and federal courts relied on the sole-organ doctrine to promote independent presidential power in external affairs.  As noted by Harold Koh in his book, The National Security Constitution (1990), “lavish description of the president’s power is so often quoted that it has come to be known as the ‘Curtiss-Wright so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”

Litigation in the George W. Bush administration led to second thoughts about the sole-organ dicta.  In signing legislation in 2002, President Bush objected that several provisions “impermissibly interfere with the constitutional functions of the presidency in foreign affairs, referring to the President’s authority to “speak for the Nation in international affairs.”  Implicitly, if not explicitly, he relied on Curtiss-Wright dicta.  Litigation remained in the federal courts for a number of years, with the D.C. Circuit at one point holding that the case was a political question unfit for the courts, a position the Supreme Court rejected in 2012.

Turning to the merits, the D.C. Circuit on July 23, 2013 upheld independent presidential power in foreign affairs by relying five times on the sole-organ dicta.  It acknowledged that the language was dicta, but emphasized it was Supreme Court dicta.  It demonstrated no understanding that the sole-organ doctrine was erroneous.  The opinion by the D.C. Circuit prompted me to file an amicus brief with the Supreme Court on July 1, 2014, explaining that the purpose of Marshall’s speech in 1800 was to defend President Adams for carrying out a treaty provision and that nothing in the speech promoted independent presidential authority in external affairs.  I urged the Court to correct the error in Curtiss-Wright.  When the Court is in session, the National Law Journal each week selects a brief that merits attention.  On November 3, 2014, it selected mine, featuring this heading: “Can the Supreme Court Correct Erroneous Dicta?”

On June 8, 2015, in Zivotofsky v. Kerry, the Supreme Court rejected the sole-organ doctrine that had magnified presidential power in external affairs for 79 years.  In doing so, it proceeded to create a substitute model that promotes independent presidential power in external affairs.  It did that by first attributing to the President the quality “of unity at all times.”  Anyone who studies the presidency recognizes that administrations regularly display inconsistency, conflict, disorder, and confusion.  Memoirs written by top officials after their retirement highlight the infighting and disagreements prevalent within an administration.

To the quality of unity the Court added four other characteristics of the President: decision, activity, secrecy, and dispatch, borrowing those words from Alexander Hamilton’s Federalist No. 70.  Why would the Court assume that unity plus those four qualities are inherently positive in nature and consistent with constitutional government?  The five qualities could easily describe a monarchy or dictatorship.  Moreover, anyone familiar with the record of Presidents, particularly after World War II, would understand the costly record of Truman in Korea, Johnson in Vietnam, Reagan in Iran-Contra, Bush II in Iraq, and Obama’s decision to order military force against Libya, leaving behind a country broken legally, economically, and politically, providing a breeding-ground for terrorism.  For further details on the sole-organ doctrine, see my article “The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,” 31 Constitutional Commentary 149 (Summer 2016).

For another recent action by the Supreme Court to correct an earlier decision, one can review the Japanese-American cases of Hirabayashi (1943) and Korematsu (1944).  On February 19, 1942, President Roosevelt issued Executive Order 9066, leading to various actions against Japanese Americans.  A month later, Congress passed legislation to ratify the executive order.  In the first case, the Court upheld a curfew placed on Japanese Americans on the west coast.  In the second case, the Court supported the relocation of Japanese Americans (two-thirds of them U.S. citizens) to detention camps.  With no evidence of disloyalty or subversive activity, the United States imprisoned Japanese Americans solely on account of race.  General John L. DeWitt, who established the curfew, believed that all Japanese Americans, by race alone, are disloyal.  He believed that individuals of Japanese descent belong to “an enemy race” whose “racial strains are undiluted.”

Aided by scholars, Hirabayashi and Korematsu returned to court in the 1980s after newly discovered documents revealed the extent to which executive officials had deceived federal courts and the general public.  A report prepared by the War Department contained erroneous claims about alleged espionage efforts by Japanese Americans.  With abundant evidence of executive branch efforts to deceive the judiciary, Hirabayashi and Korematsu filed a writ of coram nobis, charging the government with committing fraud against the court.  Through those actions, in the lower courts, their convictions were reversed.

Also in the 1980s, Congress created a commission to gather facts and determine the wrong done by Roosevelt’s order.  Released in December 1982, the commission’s report stated that the order “was not justified by military necessity” and that the principal factors shaping those decisions were “race prejudice, war hysteria, and a failure of political leadership.”  To the commission, the decision in Korematsu “lies overruled in the court of history.”  In 1988, Congress passed legislation to acknowledge “the fundamental injustice of the evacuation, relocation, and internment” of Japanese Americans.  At that point the Supreme Court had sufficient evidence that its decisions in 1943 and 1944 were defective and needed to be repudiated.  It chose not to do that.

Not until June 26, 2018, did the Supreme Court admit error in Korematsu.  Writing for the Court in Trump v. Hawaii, Chief Justice John Roberts stated that Korematsu “was gravely wrong the day it was decided.”  If that is so, why did the Court take 74 years to make that admission?  Given the Court’s acknowledgment that Korematsu was defective, what about Hirabayashi?  Is that still good law?  Why didn’t the Court repudiate both decisions?

Conclusions

In an article published in 1962 in the NYU Law Review, Chief Justice Earl Warren discussed the Court’s role in safeguarding individual rights.  As to the Japanese-American cases in 1943 and 1944, he offered this explanation: “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.”  Clearly that is a repudiation of judicial finality.  Expecting courts to regularly protect constitutional liberties is ill-advised.  Warren believed that the American political system requires the judiciary to play a restricted role: “In our democracy it is still the Legislature and the elected Executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution.

Louis Fisher is Scholar in Residence at the Constitution Project.  During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress.  His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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Guest Essayist: Louis Fisher

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Although there is a general belief that courts are reliable guardians of individual rights, the pattern of litigation does not support that position.  Congress and state legislatures have often been more reliable protectors of minority rights and civil liberties than the Supreme Court.  The doctrine of judicial finality has been thrust aside in many broad areas, including the rights of blacks, women, and religious minorities.

In Dred Scott v. Sandford (1857), the Court concluded that Congress had no authority to prohibit a citizen from owning slaves north of the dividing line in the western territories.  In his inaugural address in 1861, President Lincoln addressed the issue of judicial finality, stating that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”  In legislation enacted in 1862, Congress asserted its independent constitutional authority by prohibiting slavery in the territories.  What the Supreme Court said in Dred Scott Congress could not do, it did.

In 1875, Congress passed legislation to provide blacks equal access to public accommodations, including theaters, restaurants, inns, and public transportation.  In the Civil Rights Cases of 1883, the Supreme Court declared the statute unconstitutional.  Not until 1964 did Congress again pass legislation providing for equal access to public accommodations.  What could have been accomplished in 1875 had to wait nearly a century because of judicial obstruction.

As with blacks, women learned that their constitutional interests were better protected by legislative bodies, at both the state and national level.  A good example is the experience of Myra Bradwell.  After studying law, she applied for admission to the Illinois bar in 1869.  A panel of four male judges denied her application solely on the ground that she was a woman.  They did suggest that action by the state legislature was an option.  In 1872, it passed legislation stating that no person “shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.”

Bradwell then took the issue to the Supreme Court, hoping to establish a national right of women to practice law.  A unanimous Court in Bradwell v. State (1883) held against her.  A concurrence by Justice Joseph P. Bradley insisted that the civil law, “as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.”  He insisted that man “is, or should be, woman’s protector and defender.”  The “natural and proper timidity and delicacy” of women made them “unfit” for many occupations, including law.  Reaching to a higher level, he argued that a “divine ordinance” commanded that a woman’s primary mission in life is centered in the home.  While some women do not marry, he nonetheless decided that a general rule imposed upon women the “paramount destiny and mission” to fulfill the roles of wife and mother.”  To Bradley: “This is the law of the Creator.”

Not until 1971 did the Supreme Court issue an opinion striking down sex discrimination. A unanimous Court in Reed v. Reed declared invalid an Idaho law that preferred men over women in administering estates.  A study by John Johnson and Charles Knapp, published in the NYU Law Review in 1971, denounced the failure of courts to defend the constitutional rights of women.  They concluded that “by and large the performance of American judges in the area of sex discrimination can be succinctly described as ranging from poor to abominable.”

Consider the recent case of Lilly Ledbetter.  In 2007, the Supreme Court split 5-4 in deciding that her claim against Goodyear Tire for pay discrimination had been filed too late.  She had worked there from 1979 to 1998, aware only toward the end of her service that she was paid less than men doing the same work.  The Court held that she had to file within 180 days.  A dissent by Justice Ruth Bader Ginsburg recalled that the Civil Rights Act of 1991 overturned in whole or in part nine decisions of the Supreme Court.  She remarked: “Once again, the ball is in Congress’ court.”  In one of the first bills signed by President Barack Obama, Congress passed legislation in early 2009 stating that discriminatory actions by an employer carry forward in each paycheck, allowing women to file a complaint in a timely manner for relief.

Consider other judicial reversals.  In 1916, Congress passed legislation to regulate child labor in interstate commerce.  Two years later, in Hammer v. Dagenhart, a 5-4 Supreme Court struck down the statute as unconstitutional.  Congress did not accept judicial finality.  It passed legislation to regulate child labor, relying this time on the taxing power.  In Bailey v. Drexel Furniture Co. (1922), an 8-1 decision struck down that legislative effort.  Congress passed a constitutional amendment in 1924 to provide authority under the commerce power to regulate child labor, but by 1937 only 28 of the necessary 36 states had ratified it.

Instead of accepting judicial finality, Congress passed legislation in 1938 to regulate child labor through the commerce power.  In 1941, the Supreme Court unanimously upheld the statute.  As to its decision in 1918, the Court remarked that it “was novel when made and unsupported by any provision in the Constitution.”  A remarkable statement.  Not a shred of constitutional support.  The Court in 1941 repudiated not only the doctrine of judicial finality but the assumption of judicial infallibility.  The motive and purpose of a regulation of interstate commerce are matters, said the Court, “for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.”

In City of Boerne v. Flores (1997), Justice Anthony Kennedy stated that when the Supreme Court “has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.  Marbury v. Madison, 1 Cranch, at 177.”  Reference to Marbury lacks any substance.  Nothing in that decision gave the Supreme Court the final word on legal and constitutional matters.  Kennedy made no mention of Goldman v. Weinberger (1986), in which the Court upheld the military’s authority to prohibit Captain Goldman from wearing his yarmulke indoors while on duty.  The following year, Congress passed legislation to permit members of the military to wear religious apparel unless it interferes with military duties.  Congress acted pursuant to its express Article I power to “make Rules for the Government and Regulation of the land and naval Forces.”  The decision in Goldman was little more than an advisory ruling, deferring to whatever Congress later decided to enact.

Louis Fisher is Scholar in Residence at the Constitution Project.  During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress.  His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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Guest Essayist: Louis Fisher

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According to the doctrine of judicial finality, the Supreme Court has the last word in interpreting the Constitution unless it changes its mind or the Constitution is amended.  This doctrine, widely accepted, has no basis in the historical record.  In part, that is because the Court, as with the other political branches, makes mistakes.  Chief Justice William Rehnquist expressed the reason quite crisply in Herrera v. Brown (1993): “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”  As this article will explain, when the Court errs it can take six or more decades to recognize a judicial error and announce a correction.

Claims of Judicial Finality

Scholars at times attribute to Chief Justice John Marshall a position he did not promote.  According to Joel Richard Paul in his book Without Precedent: John Marshall and His Times (2018), Marshall “elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.”  In another study published that same year, The Most Dangerous Branch, David Kaplan states 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 since.”

In Marbury, Marshall stated it is “emphatically the province and duty of the judicial department to say what the law is.”  Nothing in that phrase makes any claim of judicial finality.  It merely states that courts decide cases.  One can also say that it is emphatically the province and duty of the elected branches to say what the law is.  Nothing in Marshall’s judicial service supports the belief that he regarded the Supreme Court as supreme on constitutional issues.  His behavior during the impeachment hearings of Judge John Pickering and Justice Samuel Chase demonstrates that he understood the value of sharing that responsibility with Congress and the President.  Marshall wrote to Chase on January 23, 1805, suggesting that members of Congress did not have to impeach judges whenever they disagreed with their legal opinions.  Congress could simply reverse objectionable rulings through the regular legislative process.  The Court could say “what the law is” but so could Congress.

Consider what he wrote to Chase: “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature.  A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.”  Those are not the words of someone devoted to judicial superiority or finality.

During Marshall’s lifetime, he was well aware that constitutional decisions by the Supreme Court could be reversed by the other branches.  In McCulloch v. Maryland (1819), the Court upheld the authority of Congress to create a national bank.  That decision did not prevent Congress or the President from reaching a different position at a later date.  That is what happened on July 10, 1832, when President Andrew Jackson vetoed a bill to incorporate the bank.  He acknowledged that those who supported the bank maintained that “its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court.”  He rejected that position.  Congress did not override his veto.  Aware of Jackson’s action, Marshall had full appreciation of the degree to which the elected branches could reverse constitutional decisions by the Supreme Court.  He passed away on July 6, 1835.

Louis Fisher is Scholar in Residence at the Constitution Project. During his four decades with the Library of Congress, from 1970 to 2010, he served as Senior Specialist in Separation of Powers with the Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress. His 27 books include the forthcoming: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019).

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