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.

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