William & Mary Law Review Online


Louis Fisher


As with any human institution, the United States Supreme Court makes errors that, over a period of time, need correction. By focusing on the Japanese American cases, Hirabayashi (1943) and Korematsu (1944), the record is particularly remarkable. Over many decades the Supreme Court had abundant evidence that the two decisions were defective. It was not until June 26, 2018, in Trump v. Hawaii, that the Supreme Court announced that “Korematsu was gravely wrong the day it was decided.” If Korematsu was that deficient, why did it take the Court seventy-four years to admit it? Moreover, what about Hirabayashi? The decision in 2018 did not address the case. Is Hirabayashi still good law? Federal judges, legal scholars, and reporters often advance the position that the Supreme Court is the final arbiter of the Constitution’s meaning. In 1953, Justice Robert Jackson promoted the doctrine of judicial finality with this statement: “We are not final because we are infallible, but we are infallible only because we are final.” Perhaps a clever and witty turn of phrase, but at no time has the Supreme Court ever been either final or infallible. That fact should have been obvious to Jackson. [...] The record demonstrates that constitutional law is part of a broad dialogue that includes all three branches, fifty states, scholars, and the general public. Corrections are often needed to take account of changes in public attitudes. In a system of self-government, these shifts can generate new constitutional values. Alexander Bickel noted in 1962 that the process of developing constitutional principles in a democratic society “is evolved conversationally not perfected unilaterally.” Supreme Court decisions lack finality in part because human institutions, including the judiciary, are prone to miscalculation and error. Accordingly, such rulings are often challenged and reversed. This abstract has been taken from the author's introduction.