. . . from one thing that Robert Bork says in his otherwise fine article here at NRO today. Judge Bork writes that “[p]recedent counts for less in constitutional law than elsewhere,” and it is true as a practical matter that most judges and lawyers think so. But the reason he gives is that “the Court is final when it invokes the Constitution and only the Court can correct its own mistakes.” Here is where I part company.
This was not the view of John Marshall, of James Madison, of Abraham Lincoln, to name a few notables. It was notably the view of Stephen Douglas, Lincoln’s nemesis, who may have been the earliest figure in our political history to make an unqualified public argument for judicial supremacy, and did so in defense of the Dred Scott ruling. The Court itself never openly claimed such an august “final” authority over constitutional questions until less than half a century ago, in Cooper v. Aaron (1958).
It is a mark of how far we have departed from the original understanding of judicial power that a bland acceptance of the Supreme Court’s allegedly “final” authority over constitutional questions stretches across the spectrum of politics, left, center, and right, and across the spectrum of legal thought as well, from self-described originalists to unabashed “living Constitution” types. That so fine a jurist as Robert Bork can join the chorus suggests how much work of historical and theoretical recovery is still needed.
I’ll be really happy on that day, not to be expected soon, I fear, when a senator reads that line “the Court is final” to a nominee to the Supreme Court, and the nominee rejects it as an erroneous reading of the Constitution. Then we’ll be on the road back to the original Constitution.