Bench Memos

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More on Bork


Mark Levin is a busy man, too busy to have availed himself of my not-so-extensive writings in obscure places, like the review I published of Robert Bork’s The Tempting of America fourteen years ago in the journal Interpretation. What a man writes in 2005 ought to be intelligible on its own two feet, but if we are to resort to Judge Bork’s past writings to give context to what he says today, I will note that Mark’s two examples below are not “on point” for the question whether Bork believes judicial review and judicial supremacy to be interchangeable. What is relevant is that in The Tempting of America, Judge Bork uses the phrase “judicial supremacy,” approvingly, as a perfect equivalent for the phrase “judicial review,” on pages 16, 160, 201, and 252. He also says the following in the same book:

“We have placed the function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary, and thus, ultimately, in the Supreme Court of the United States.” (p. 139)

“Legislators and executives are not final; a court purporting to apply the Constitution is. The supremacy of unelected judges’ decisions brings questions of judicial capacity and legitimacy to the center of constitutional law.” (p. 200)

I would be happy to learn that Judge Bork has revised his views on this matter since 1990. On the evidence of the line I quoted from his NRO piece posted yesterday, I don’t think he has.

It is true that Bork has declared himself opposed to “judicial imperialism” (Tempting, p. 235), and he is steadfastly dedicated to originalism, understood (in part) as resistance to the idea that judges should make the Constitution say things it does not say. Unfortunately, it doesn’t say “the Supreme Court is the ultimate arbiter of the tension between majority power and minority freedom,” either.

In Tempting, Judge Bork had this to say as well: “The difficulty with all proposals to respond to the Court when it behaves unconstitutionally is that they would create a power to destroy the Court’s essential work as well. . . [T]he only safeguard we have in the long run against the abuse of a judicial power, which we have agreed in advance to obey, is the formation of a consensus about how judge should behave . . .” (p. 55).

I understand that in more recent writings Judge Bork has suggested that we do away with judicial review, or take steps to counteract it by supermajority votes in Congress, or some such thing. Such counsel of despair seems to be driven by his belief that judicial review necessarily entails judicial supremacy.

In sum, Robert Bork may lately have decided that he doesn’t like judicial supremacy. But if he has ever denied that the Constitution places in the Supreme Court an ultimate, final authority to state, with obligatory legal effect on all other political institutions, what the meaning is of any constitutional provision the Court cares to interpret, I would be pleased to know where he has ever done this.


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