Bench Memos

The Bork Chronicles

Let’s recap: I wrote: “I am sure Judge Bork is as aware as any of us of our history, including judicial authority, and nothing in his extensive writings suggests he’s endorsing judicial supremacy — not even his recent NRO post. I believe he’s making an observation about modern judging.”

Matthew responded by quoting the relevant portion of Bork’s NRO piece and then commented, in part: “This looks to me like an outright endorsement of the ‘judicial finality’ thesis about authority over constitutional questions — the thesis, as I said, rejected by Marshall, Madison, and Lincoln. Mark and I, and Judge Bork if he wants to weigh in, can debate the association between judicial finality and judicial supremacy.”

I responded by quoting two excerpts from two of Bork’s books, in which he says, in part: 1. judges have the final say as a practical matter; 2. the Constitution has “an existence independent of anything judges may say”; and 3. “judges have wrought is a coup d’etat.” All three points suggest to me that Bork does not endorse judicial supremacy.

In response, Matthew argues that Bork’s NRO piece should condemn him without the benefit of decades of scholarly context, and he argues further that my references miss the point, claiming that these excerpts do not address the fact that Bork believes “judicial review and judicial supremacy to be interchangeable.” Of course, this is a slight shift from where we began, where Matthew saw no difference between Bork’s use of the word “finality” and the word “supremacy.” (Of course, depending on the context, they can be very different. For example, a Supreme Court decision is a final decision, unless and until the Court revisits it. That would be judicial finality, as opposed to judicial supremacy over the other branches.)

Back to Bork. In NRO, he wrote, in part, that “the Court is final when it invokes the Constitution and only the Court can correct its own mistakes.” Matthew writes: “This looks to me like an outright endorsement of the ‘judicial finality’ thesis about authority over constitutional questions — the thesis, as I said, rejected by Marshall, Madison, and Lincoln. …” It’s difficult to come to that conclusion unless one ignores Bork’s prior writings. It is simply illogical to hold that Bork endorses judiciary supremacy when he also says the judiciary has “wrought … a coup d’etat” — which would be the illegitimate exercise of power over the other branches, and that the Constitution has “an existence independent of anything judges may say.”

Matthew counters with excerpts of his own but gives some ground when he writes: “In sum, Robert Bork may lately have decided that he doesn’t like judicial supremacy. But if he has ever denied that the Constitution places in the Supreme Court an ultimate, final authority to state, with obligatory legal effect on all other political institutions, what the meaning is of any constitutional provision the Court cares to interpret, I would be pleased to know where he has ever done this.”

My answer for now: “I understand that in more recent writings Judge Bork has suggested that we do away with judicial review, or take steps to counteract it by supermajority votes in Congress, or some such thing. …” So wrote Matthew Franck. If Matthew presents us with his sources, we are likely to have the evidence he seeks. Obviously, if one suggests that “we do away with judicial review, or take steps to counteract it …,” then one is not endorse judicial supremacy. (Of course, judicial review and judicial supremacy are not the same thing, but judicial supremacy is an impossibility without judicial review.) Obviously, Bork can resolve this for us, if he follows these debates here.

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