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Bench Memos

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Another Try



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I think we’ve swayed into silliness now, Matthew. Here is what I said: “(Of course, depending on the context, they [finality and supremacy] can be very different. For example, a Supreme Court decision is a final decision, unless and until the Court revisits it. That would be judicial finality, as opposed to judicial supremacy over the other branches.)” I specifically rejected that which Matthews alleges now. But now Matthews asserts that I concur with Bork, that finality and supremacy are identical, which, I’ve been contending, Bork does not. So, now Matthew has Bork and me endorsing something we do not. My eyes are beginning to glaze over. Anyway, Matthew certainly knows from our past lengthy discussions on judicial review that I don’t even believe the Court has an explicit constitutional authority to exercise judicial review as to constitutional issues, regardless of what Marshall wrote, and I have written as much (dare I point to my book, or is that irrelevant in determining my views as well?) Matthew, on the other hand, believes it does. I wish Matthew was more of an originalist but, hey, he’s still one of the brightest guys I know.



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