Bench Memos

Ah, Yes…Specter…Specter and the Marbury Myth

Senator Arlen Specter will preside, for the first time in his long career, over the hearings for a Supreme Court nominee. I expect he will continue a pattern he has followed for a very long time as a rank-and-file member of the Judiciary Committee. Specter has pursued one subject with every nominee since the Rehnquist-Scalia hearings of 1986: the supremacy of the judiciary over all other institutional competitors as the final, authoritative interpreter of the Constitution, whose word is binding on all others.

Specter’s a senator, so he’s against such a notion, right? He thinks the legislative branch at least enjoys some parity with the Court as a constitutional interpreter, right? Wrong. Specter is Washington’s foremost advocate of judicial supremacy, and he has pressed every nominee for the last two decades to embrace a view of the Constitution in which the Congress of the United States is a subordinate agency, subject to the Court’s binding authority on all questions of its–the Congress’s–own power.

The last prominent public official in our national government to challenge this view was Attorney General Edwin Meese, who argued in 1985 that the rulings of the Supreme Court are not themselves the same thing as the Constitution itself. For stating this once-commonsense view he was roasted and denounced from coast to coast by newspaper editorialists, the law-school establishment, and the left in general. Specter too, it appears, was shocked and appalled to hear an attorney general restate the views of Abraham Lincoln.

Ever since then, Specter has dedicated himself with uncommon diligence to demanding of future Supreme Court justices that they declare themselves in favor of the proposition that the Congress is inferior to the Court when it comes to construing the Constitution. This puts Specter–now with the authority to speak as chairman of Judiciary–in the strange position of denigrating his own institution while unduly elevating the one whose future officeholders he is interviewing. Can it be any surprise that the nominees generally acquiesce in the view that, once sworn in, they will be the most powerful constitutional authorities in American politics?

Here is a sampling from this Spectral line of questioning over the years:

*To Robert Bork, 1987: “[U]nless there is an appeal and a change in the Court’s decision, . . . such a decision does establish a supreme law of the land that is binding on all persons and parts of the Government.”

*To Anthony Kennedy, 1987: “[A]s long as the Court has said what the Court concludes the Constitution means, then I think it is critical that there be an acceptance that that is the final word.”

*To David Souter, 1990: Marbury v. Madison is “the 1803 case where it was decided by the Supreme Court that the Supreme Court had the last word on what the Constitution meant.”

*To Clarence Thomas, 1991: “[T]he Supreme Court has the last word, no doubt in your mind about that.”

*To Ruth Bader Ginsburg, 1993: “The decision in Marbury v. Madison established the supremacy of the Supreme Court to decide constitutionality of issues, and there are some up to the moment who dispute that.”

*To Stephen Breyer, 1994: “We know the courts are supreme to both the Congress and the president because the court told us so in Marbury v. Madison. When the Constitution was formed, Congress was number one, the president was number two in the second Article, courts didn’t come up until Article Three, but all that was changed. It was renumbered in Marbury v. Madison.”

Probably no senator has ever been so slavishly devoted to the historical falsehood that Marbury v. Madison is the fount of judicial supremacy. In fact that anti-constitutional doctrine is entirely a fabrication of the last century or so, as some of the best recent scholarship has shown.

But what is so curious about Specter’s position is that a senator, of all people, should be so dedicated to an idea so inimical to republicanism and (most to the point, one would think) to the independence and integrity of the legislative power of which he holds a share. It is a shocking form of surrender to the tyranny of unaccountable judges–or it should be, if we are still capable of being shocked–and it is worse coming from someone in a position to oppose such tyranny, whose own institutional interest lies in doing so.

Yet another reason to regret the failure of nerve of the Republican Party when it briefly considered denying Specter the chairmanship after last fall’s election.


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