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Bench Memos

NRO’s home for judicial news and analysis.

It’s Just My Opinion



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that the reasoning in today’s Washington Post editorial is very weak. Wagging its finger at House Judiciary chairman James Sensenbrenner for his remarks on Monday at Stanford University, the Post has this to say on the option of impeaching judges, which Sensenbrenner steered clear of: “Judicial independence has no meaning if Congress reserves the right to remove judges from the bench when it disagrees with their opinions.” Well now. I agree with NR’s view in its editorial in the May 9 issue that impeachment is practically useless today because there are simply too many “bad apples”: where would one start, and where would one stop? But the Post effectively takes the position, “What’s the Constitution between friends?” There’s your opinion, there’s my opinion, and there’s the Court’s opinion of what the Constitution means. So what’s to worry about? You wouldn’t retaliate against those poor helpless judges just because of what they think, would you?

This won’t do. The reason there is so much attention paid to the judiciary today–the reason a new blog like this one is such a good idea–is that the effects of judicial supremacy over the interpretation of the Constitution have become so obviously disastrous for the Republic. A judicial opinion is far more than the “opinion” anyone else might have: it is the giving of reasons for a decision on the practical meaning of the Constitution, and in the usual dispensation nowadays (embraced every other day by the Post), if that opinion is announced by the Supreme Court, it is itself an authoritative statement of the law of the land, as good as the Constitution itself at all times and places, until and unless the Court itself changes its mind.

The Post appears committed to two ideas that are rationally incompatible but nevertheless have been historic bedfellows: judicial supremacy and the “living Constitution.” The first holds that the final and ultimate arbiter of all questions regarding the meaning of the Constitution is the U.S. Supreme Court. The second holds that the Constitution has no fixed meaning of its own, from which it follows that there are no correct and incorrect interpretations of it–only “progressive” and “reactionary” meanings to be struggled over by contending political forces seeking authoritative control of public policy. A softer, more “postmodern” version of this second idea is that the Constitution is radically indeterminate in its meaning, capable of accommodating just about any “creative” opinion about its interpretation.

How anyone attached to republicanism could hold both these thoughts together is a fair question. The Post avoids the difficulty by suppressing (just for today) its usual support of judicial supremacy, in order to advance the view that all kinds of “opinions” about the meaning of the Constitution ought to be treated with the utmost tolerance. But if we remember that contemporary orthodoxy says the rest of us have to live, like it or not, with whatever the Supreme Court says the Constitution means, and if we believe (what the Post implicitly denies) that it matters whether the Court gets it right or gets it wrong, we can think more clearly about these matters than the Washington Post.



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