maule at LAW.VILLANOVA.EDU
Thu Dec 14 15:18:04 PST 2000
>>> winkler at ucla.edu 12/14/00 01:55PM >>> writes
[snip] Nevertheless, in the wake of Bush v. Gore it is clear that if the
Court wants to rule on an issue, it will do so and that decision, no
matter how partisan or lacking in firm legal footing it appears, will
be the final word and represent the constitutional law of the nation.
Except to the extent a constitutional amendment changes the outcome. And that suggests that Supreme Court decisions can be separated into those as to which a constitutional amendment can change the outcome and those that cannot be so affected because the water is over the dam.
Or, is there no such distinction on the basis that no constitutional amendment can change the result vis-a-vis the parties who were in front of the court on the particular decision at issue but only results as to future parties who find themselves in similar circumstances. Thus, for example, a constitutional amendment overturning Roe and Casey cannot affect the parties in those lawsuits but only parties who come along after the amendment, and a constitutional amendment having the effect of overturning Bush v Gore cannot affect Bush or Gore (in 2000) but only candidates (perhaps including Bush and Gore) coming along after the amendment takes effect. Is there a difference on account of the very high likelihood that there will be many more parties in the position of Roe but probably very few, if any, presidential candidates in the position of Bush and Gore in 2000 (aside from my quip that we ought not rest assured that 2000 won't happen again in 2004 or 2008)?
I raise these questions because at least on a theoretical level, a system of checks and balances leaves no one branch of the government as the absolute all-time arbiter. In practical terms, given the difficulties of getting constitutional amendments through, perhaps there is some degree of pragmatic reality in the characterization of the Supreme Court as the ultimate decision maker.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
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