Louis Fisher


On June 18, 2018, the Supreme Court in Trump v. Hawaii finally acknowledged that its decision in Korematsu v. United States (1944) was in error. It took seventy-four years to make that admission, even though it was widely recognized by scholars and a congressional commission that the decision was fundamentally defective. In the 1936 Curtiss-Wright decision, the Court completely misinterpreted a speech by John Marshall when he served in the House of Representatives. Although he referred to the President as “the sole organ of the nation in its external relations,” he never argued that the President controlled all of foreign affairs. Such a claim would violate the plain text of the Constitution. Instead, Marshall defended President John Adams for acting on the basis of specific authority in the Jay Treaty. Still, the Court spoke of “very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.” Scholars immediately attacked the Court’s error but it remained in place to promote presidential power until finally jettisoned by the Court in the 2015 Zivotofsky decision. It took seventy-nine years to correct an obvious and well publicized judicial error. The 1953 Reynolds case involved a B-29 bomber that exploded over Waycross, Georgia, killing a number of crewmembers and civilian engineers. Three widows of the engineers filed a tort claims lawsuit. Lower courts understood the principle of judicial independence and the need to examine the accident report to determine if the Air Force had been negligent. The Supreme Court, without looking at the report, accepted the government’s assertion that it contained state secrets. The plaintiffs later obtained the declassified report and learned that it contained no state secrets but abundant evidence of Air Force irresponsibility. They returned to court, charging fraud against the judiciary. The Supreme Court chose not to take the case. The erroneous Reynolds decision continues to guide the executive branch and federal courts, at great cost to individual rights and constitutional government. An understanding of U.S. history rejects the doctrine of judicial finality, which asserts that constitutional decisions by the Supreme Court are final unless the Court changes its mind or the Constitution is amended. That theory is regularly undermined by historical precedents, demonstrating that constitutional law is shaped by all three branches and the general public

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