Bench Memos

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Re: Dellinger and Judicial Supremacy


I think that’s right, Ramesh.  One of the most striking aspects of Dellinger’s argument is when he suggests that the most defensible form of executive behavior is any “course of action [that] facilitates the court’s involvement” in supplying a presumptively definitive settlement of a disputed constitutional question.  Dellinger is terribly exercised by what he sees as the Bush administration’s “avoidance of judicial review.”  But of course a robust assertion of executive authority under the Constitution is under no obligation to submit constitutional questions to the judiciary.  Nor is it even obligatory for the executive (or the legislature) to heed all judicial pronouncements on the Constitution’s meaning.  Dellinger, conventionally, seems to think such obligations are inseparable from allegiance to the Constitution itself.

Tags: Garnett


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