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University of New Hampshire Law Review

Article Title

The Claim of Judicial Finality: Theory Undercut by Experience

Authors

Louis Fisher

Abstract

Justices of the Supreme Court, legal scholars, and reporters who cover judicial proceedings frequently claim that when the Court issues a constitutional decision it remains final unless the Court changes its mind or the Constitution is amended to reverse the Court. However, the record of more than two centuries offers an entirely different picture. Decisions by the Supreme Court lack finality on constitutional issues partly because the Court makes mistakes and has done so throughout its history. Human institutions, including the judiciary, are prone to miscalculation, including law, history, and political developments. After the Court issues a constitutional decision it does not deprive the elected branches from adopting policies directly contrary to what the Court has announced. This article offers many examples to demonstrate that constitutional interpretation is not centered entirely in the Supreme Court. The process involves all three branches, the states, scholars, and the general public. At times the Court recognizes the deficiency of an earlier decision and overrules it. However, the sole-organ error in Curtiss- Wright (1936) was not corrected by the Court until its decision in Zivotofsky v. Kerry on June 8, 2015. On other occasions, the regular political process offers constitutional interpretations that override the Court.