In law schools as well as political science and history classes, students are generally taught that when the Supreme Court decides a constitutional issue it delivers the final word unless the Court changes its position. That is the prominent theory. In 1953, Justice Robert Jackson promoted the doctrine of judicial finality by making a statement that is often cited: ‘We are not final because we are infallible, but we are infallible only because we are final’.[1] Perhaps a clever and witty turn of phrase but it advances a claim unsupported by facts.
What has occurred from 1789 to the present time is not judicial finality but an ongoing dialogue among all three branches of the national government, the states, scholars, and the general public. On occasion, members of the Supreme Court will acknowledge that errors and misconceptions can occur in the judicial process. Chief Justice William Rehnquist spoke bluntly in 1993: ‘It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible’.[2]
The person who should have understood that point is Robert Jackson. In 1940 the Court upheld a compulsory flag-salute with a strong majority of 8 to 1.[3] The final word? No. The decision was subject to such criticism from the public and scholars that three Justices in the majority (Hugo Black, William Douglas. and Frank Murphy) announced two years later that the decision was wrongly decided.[4] That reduced the majority to 5-4. Two of the Justices in the 8-1 majority retired and their replacements joined the four Justices to produce a 6-3 decision in 1943 reversing the 1940 decision.[5] Who wrote the majority opinion in 1943? It was Robert Jackson.
Early Precedents
The claim of judicial finality appears in a unanimous decision by Chief Justice John Marshall in McCulloch v. Maryland (1819), which held that Congress possessed an implied power to create a national bank. He said if the case had to be decided ‘by this tribunal alone can the decision be made’. On the Supreme Court ‘has the constitution of our country devolved this important duty’.[6] He concluded that the statute to create the Bank of the United States ‘is a law made in pursuance of the constitution, and is a part of the supreme law of the land’.[7] The fact that Congress created the Bank and the Supreme Court upheld it did not prevent the elected branches from reaching a different conclusion a few decades later.