Bench Memos

Supremely Inferior?

Slate carries a version of a Newsweek essay by Dahlia Lithwick that provides a “user’s guide to the Supreme Court for you to print out and take to the voting booth.”  This guide will be of particular value to anyone who wants to read that the Court is “made up of nine justices” who “have a total of about three dozen wee, elfin creatures called clerks to assist them.”   


Among other things, Lithwick tells her readers that “some of [the] more conservative jurists” on the Court don’t “believe[] in deploying [the] constitutional superpower” of judicial review.  I suppose that it ought to be refreshing that Lithwick has abandoned the Left’s claim that the judicial conservatives are conservative judicial activists striking down legislation they don’t like.  But must she really retreat to the polar-opposite error of alleging that some of the justices don’t believe in judicial review?  Surely Newsweek readers can be clued in to the jurisprudential debate between liberal judicial activists, on the one hand, and practitioners of judicial restraint, on the other, over when it is proper for the Court to strike down democratic enactments. 


Lithwick builds up to this concluding crescendo:  “If we really want to restore the rule of law in America, and the reputation of the United States as a land in which laws matter, we need to vote for a president who believes that we still call it a Supreme Court for a reason.”  (Italics in original.)  Lithwick evidently believes that we face a choice between judges who “sideline themselves” and judges who reign supreme over the other branches.  (On the modern myth of judicial supremacy, see This Week for Sept. 29, 1958.)  But there’s a vast middle ground in which judges play their proper role. 


More particularly, Lithwick misunderstands why the Supreme Court bears the name it does.  Article III of the Constitution confirms what elementary grammar would indicate:  “the supreme Court” is distinguished from “such inferior Courts as the Congress may from time to time ordain and establish.”  In other words, the Supreme Court is supreme over other federal courts (and, under Article VI, over state courts on questions of federal law), not over the executive and legislative branches.

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