Bench Memos

Thinking Outside the Box of Judicial Supremacy

In the weekend edition of the Wall Street Journal, Harvard law professor Mark Tushnet had a very smart essay raising the central question about the extent to which we are governed, on our most important political issues, by an unelected, unaccountable judiciary.  That question is, why do we put up with it?  No one can seriously say that what the Supreme Court did in the Windsor case last week was constitutional law.  It was pure politics, tarted up as constitutional law.  And if the people are not to govern themselves on political questions, then we no longer have a republic.  What then to do about it?  Tushnet has a suggestion:

I’m fond of a Canadian innovation that Judge Robert Bork also found interesting: Let the justices strike down statutes they think are unconstitutional and give their explanations. Then let Congress respond. If a congressional majority agrees with the Court, the decision stands. But if a majority thinks that the Court got it wrong, Congress can override the decision.

I was never that enamored of Bork’s suggestion when he made it years ago.  But it looks better and better.

Meanwhile, over at Public Discourse, political scientist Carson Holloway reminds us of the response Abraham Lincoln gave to the Dred Scott decision, which was to treat it as nonbinding on everyone other than the parties to the case.  Lincoln, no mean lawyer himself and someone who practically worshiped the rule of law, thought it was crazy to react to an obviously novel and wrongheaded ruling, masquerading as constitutional law, as though it settled the great controversy it purported to settle.

The more you look at Windsor, the more it looks like the Dred Scott case, right down to the question it naturally raises of what will come next.  It is, however, a magnificent opportunity for a conservative politician to rise to the status of a real statesman by challenging it, by not accepting the proposition that the Supreme Court “settles” great issues once and for all with an absurd diktat like Windsor.  At a moment when pollster Scott Rasmussen reports that public approval of the Court has fallen to an all-time low, the opportunity could not be riper.  All one has to do is to break free of the spellbinding power of the myth of judicial supremacy.

So, who is willing to be our Abe Lincoln in challenging our Dred Scott ruling?  Paul Ryan?  Chris Christie?  Scott Walker?  Ted Cruz?  Mike Lee?  Marco Rubio?  Anyone?  So far I hear only crickets.


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