Bench Memos

Reviewing Final Supremacy . . . Or Something

My exchange with Mark Levin may have entered a fatal tailspin as far as reader interest is concerned. But let me do a little recapping of my own. I began yesterday by disagreeing with Judge Bork’s evident belief that on constitutional questions, the Court’s word is “final” and only the Court itself can undo its interpretation, unless we amend the Constitution.

There may be a difference between this, which I called “judicial finality,” and “judicial supremacy.” I doubt it (more on that below), but maybe. But it was Mark, not I, who made the “slight shift” of our subject to the phrase “judicial supremacy” in his first response to me, where I had at first been talking about “judicial finality,” and only used the phrase “judicial supremacy” in a passing remark about Stephen Douglas. Still, Mark’s first response amounted to no more than a denial of what seemed evident on its face. So I replied that Judge Bork surely seemed to be endorsing judicial finality, in a sentence impossible to read any other way. Mark did not try to read it any other way, but insisted on looking at other things Judge Bork has written, producing a couple of quotations that show only that Bork believes it is possible for judges to get the Constitution wrong. This is no help on the issue between us.

Now, when I produce copious evidence that Judge Bork, in his bestselling 1990 book, repeatedly equated “judicial review” with “judicial supremacy,” Mark’s argument amounts to hand-waving diversion of the reader’s eyes from the evidence. It is quite true that Bork, in various places in more recent years, has come out either against judicial review or in favor of newly crafted restraints on it. I did not mention that in Bork’s view such steps as eliminating or institutionally constraining judicial review would require amending the Constitution. Perhaps I should have.

So. Does Robert Bork “endorse” judicial supremacy? No, it appears he is (today, anyway) quite unhappy with it. But does Robert Bork endorse the idea that the best reading of the Constitution we currently have, in advance of any improving amendments of it, is that it establishes a final, authoritative power over all matters of constitutional interpretation that the Supreme Court might take upon itself to consider? On that question I see a consistent answer of “yes” from Judge Bork, from 1990 to the present. That the Court might all too often foul up its business is an important (if obvious) point, but that final authority over the Constitution is the Court’s business is plainly Bork’s view.

I think that is the view of Mark Levin as well, based on his last posting. Mark writes that there is a difference between judicial finality and judicial supremacy, and that it is this: “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.”

The phrase “as opposed to” fails to operate here, I’m afraid. 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.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Most Popular

Politics & Policy

Did Flynn Lie?

At the outset, let’s get two things straight: First, there is something deeply disturbing about the Obama administration’s decision to open a counterintelligence investigation on retired lieutenant general Michael Flynn while he was working on the Trump campaign — and, ultimately, about the Justice ... Read More
Law & the Courts

Where Is the Flynn 302?

Better late than never (I hope), my weekend column has posted on the website. It deals with the question whether General Michael Flynn actually lied to the FBI agents — including the now infamous Peter Strzok — when they interviewed him in the White House on his third day on the job as national security ... Read More

G-File Mailbag: The Results of a Bad Idea

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including those of you just standing there eating Zarg nuts), I had a bad idea. It wasn’t a terrible idea, like asking a meth addict ... Read More
Politics & Policy

The Collusion Scenario

It has become an article of faith in some quarters on the right -- well, most -- that the Mueller investigation has found no evidence of collusion with Russia and has accordingly shifted gears to process crimes like lying to the FBI or obstruction of justice. Having decided that this must be true, many have ... Read More
Politics & Policy

Who’s in Charge Here?

In the run-up to the 2016 presidential election, Donald Trump was asked on many occasions whether he would “accept the results” of the election if he were to lose. Democrats and their media allies demanded that he make a solemn vow to “accept the results.” It was never entirely clear what anybody thought ... Read More