Bench Memos

NRO’s home for judicial news and analysis.

Bork on Judicial Authority, Continued


Matthew Franck may wish to avail himself of Bork’s extensive writings. Bork simply does not believe in judicial supremacy. Or perhaps there exists other evidence to support this contention? I think not, but am open to evidence beyond the short NRO piece. In the meantime, with very limited time, I thought these excerpts might be edifying.

“It is not more than a truism that, for practical purposes, at any given moment the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become a nullity because the Justices say it is. But behind that realism lies another fact just as real, and one with normative meaning: there is a historical Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. . . .”
(The Tempting of America)

“What judges have wrought is a coup d’etat–slow moving and genteel, but a coup d’etat nonetheless. Courts inevitably assume the role of moral teachers.” (Coercing Virtue)


Sign up for free NRO e-mails today:

Subscribe to National Review