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Bench Memos

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Better Late Than Never . . .



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Robert Alt’s belated posts on last week’s exchange (largely) between Matt Franck, Robby George, and me on judicial review clarifes that exchange, and moves it forward on several fronts. Mark Levin’s short response to Robert does, too. To these contributions I should like to add two points.

One. Mark is quite right that today, and as a practiccal matter, what most people mean by “judicial independence” is “judicial supremacy” or, better, judicial dominance of the other branches on all matters constitutional. On this question judicial conservatives are often no better than judicial liberals.

Look, for example, at the opinons in the RFRA case from 1995, City of Boerne v. Flores. There the conservative wing of the Court held that the latest judicial interpretation of the Free Exercise Clause–established by a five-to-four vote in the Smith case in 1990–settled what Congress may think Free Exercise means. This was so even where Congress would exercise (as it did with RFRA) the ostensibly broad power given to it by section five of the Fourteenth Amendment to enforce (in effect) the Free Exercise Clause.

Robert Alt says that for years Congress and the Supreme Court have been co-dependents, each enabling the other’s aggrandizement of power. Just so. In fact, I meet Robert’s wager, and raise him another level of dependency. I think the dirty little secret of congressional acquiescence in judicial usurpation is that Congress likes it. After all, how handy is it for an elected representative to say to the irate folks back home about flag burning or the Pledge or abortion or porn at the local library or any other issue that makes the pols squirm: “It is out of my hands. The Courts are handling it. Sorry. I wish I could help.”

Sometimes the pols do a bit more. Sometimes one or two or a few fulminate and remonstrate and, sometimes when really worked up into a lather, go on Larry King and rattle the saber. Once in a while they introduce legislation–a constituional amendment, perhaps–to take back an issue hijacked by the courts. But how often do these “stand-up” reps really mean it? How much political capital do they really put up–before they shut up?



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