Matthew wrote, in part: “If the Court takes up a new issue never before decided by it (say, state legislative reapportionment or the validity of the legislative veto by Congress), it is extending its domain over constitutional questions into new territory, previously occupied only by the other branches. Mark’s view is that however wrongly it decides this new question, the Court’s decision is final until it can be persuaded to change its mind in a subsequent case. Perhaps he can explain to me how this is not judicial supremacy.”
Yes, Matthew, it is extending its domain — improperly. My point was a practical one, as I have said from the outset, and as I believe Bork meant as well. I don’t know how to make it any clearer. I am not endorsing the Court’s interposition in any way. I am saying that, as a practical matter, if the Court rules on a constitutional matter, it is final as to the Court unless the Court takes up the issue again. I wish the Court would limit its authority to its constitutional role. I wish Congress would exercise its power over the judiciary. I believe it should. But the practical point remains. I believe it’s a simple matter of logic.