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60 Chapter 4
at least for cases engaging the norm of legality. 26 No doubt we all
would say that for any given case there must be a single court of last
resort. That is true by definition (what would it mean to say that there
is more than one court of last resort for any given case?) — and a good
thing, too, in the sight of all who share the commonsense view that
every episode of litigation had best come to an end sometime. Saying
so does not, however, answer the question, prompted by the South
African story, of whether or why, one and the same court must serve
as court of last resort in every single case that turns on a point of
constitutional law. Why not share out the work? Why not have two or
more tribunals (or sets of tribunals) authorised and available to act as
court of last resort in constitutional cases? There would be some
serious detriments in such an arrangement, to be sure, but might
there also be some benefits?
In South Africa, as things stand, the more-than-one tribunals of
last resort in constitutional matters would be the Constitutional Court
and the Supreme Court of Appeal. (The required tweak is simple: Just
revoke the former court’s power of review of decisions of the latter
in constitutional matters.) In the US, the multiple tribunals of last
resort in matters of US constitutional law would presumably be the
federal Supreme Court on the one hand and the set composed of the
highest courts of the states on the other hand. As it happens, that’s
not the way it works in the US. Americans have avoided that result by
our choice to provide for US Supreme Court review of state supreme
court decisions on points of federal constitutional law. But was that a
necessary choice, an inevitable choice? Judge Learned Hand found it
so in his famous Holmes Lectures, 27 and still I must say it appears just
a shade less inevitable to me now than it once did — largely as a result
of my study of South African case law. (That is not to say I would
recommend any change in our practice to Americans just now.)
A multiple-peaks possibility for South Africa was more-or-less
placed on the table by the Supreme Court of Appeal deciding
Container Logistics. It was rejected by the Constitutional Court in
Pharmaceutical Manufacturers, it would seem definitively (the only
question now under live debate being official expansion to plenary of
the last-resort jurisdiction possessed solely by the Constitutional
Court). As matters now stand, the Constitutional Court is vested with
power to review any and every decision on a point of South African
law rendered by any other court in the system, the only pre-
26 ‘Closely resembling’, I say, but not quite the same thing. The proposition of the
Supreme Court of Appeal was that it might invalidate one or another government
action on the ground of deviation from a common-law norm of legality which is
not at the same time a norm of constitutional law and so (this was the clearly
intended implication) does not give rise to a constitutional matter reviewable by
the Constitutional Court.
27 L Hand The Bill of rights: The Oliver Wendell Holmes lectures (1958).