Guest Essayist: Louis Fisher


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: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, 2019)

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Excellent essay. The very first sentence had me hooked to see what was to follow. And what followed was a highly appreciated chronicling of cases where the court did not look out for our rights. Thank you.



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