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Bench Memos

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NY Times: “We’re Above the Law”



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According to the conventional liberal mythology propagated by the New York Times and others, the Supreme Court is the final and authoritative expositor of the Constitution and all other government officials had better fall in line quickly with whatever it says.

Never mind that the president is required by the Constitution to take an oath that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States”–not the Supreme Court’s mistaken interpretations of the Constitution. Never mind that Marbury v. Madison, which is usually cited as the authority for this proposition, says nothing of the sort and that the Supreme Court itself never made such a claim until 1958. And never mind that Jefferson, Jackson, and Lincoln expressly repudiated the proposition. As Lincoln put it in his First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
As it happens, however, the New York Times would except its reporters from the obligation to follow even a final and specific court order directed at them. On Monday, the Court refused to review a district judge’s order requiring a Time magazine reporter and a New York Times reporter to turn over notes relating to the Valerie Plame leak investigation. Today, Time magazine stated that it would comply with the court’s order:
“The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.”
The New York Times, by contrast, remained defiant and declared itself “deeply disappointed by Time Inc.’s decision.”


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