Bench Memos

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Re: Bork on Judicial Authority


Mark Levin thinks I have misread Judge Bork on the subject of judicial supremacy, saying he thinks Bork is only “making an observation about modern judging.” That is, he was being merely descriptive and not prescriptive in the snippets I quoted. Okay, here’s Judge Bork’s entire sentence, the only one in his article with which I took issue or that I quoted before:

“Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes.” (Italics mine)

This looks to me like an outright endorsement of the “judicial finality” thesis about authority over constitutional questions–the thesis, as I said, rejected by Marshall, Madison, and Lincoln. Mark and I, and Judge Bork if he wants to weigh in, can debate the association between judicial finality and judicial supremacy. There may be interesting differences. But to my way of thinking, they are about as closely related to one another as my upper and lower jaws are when I bite.


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