Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions

Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

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Communism in Eastern Europe

In the past two weeks, I have been traveling along the Danube River, visiting various former Communist countries in Eastern Europe.  My wife and I have visited Prague in the Czech Republic, Bratislava in Slovakia, and Budapest in Hungary (as well as Vienna in nonaligned Austria).

Travelling through these cities and speaking to some of the people, especially the guides, has been enormously interesting.  These are people who lived through the communist period.  Their views of communism are not (merely) based on abstract arguments about its problems.  These people lived under the system and experienced what it was like.

After speaking to several of these people, I found their stories — while differing in details — to be consistent.  The communism that they lived under was a brutal system that both deprived people of freedom and impoverished them.  But it is the specific events of their lives — stories about their parents and relatives and friends — that give special power to the critique of communism.

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What’s Dignity for the Goose Is Dignity for the Gander


It was in April, during oral arguments in the collection of cases known as Obergefell v. Hodges that Justice Kennedy publicly fretted over the legal outcome that his jurisprudence has, in effect, created. To the surprise of Court-watchers, Kennedy at one point let out that he had “a word on his mind . . .  and that word is millennia.”

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Big Love

Just in time for the Supreme Court’s eagerly awaited or in any event impending decision in Obergefell, Professor Ronald C. Den Otter (of a California state university in San Luis Obispo) has mounted an impressive Defense of Plural Marriage.  As the good professor notes in a balkinization guest post, Those who care about gays and lesbians being discriminated against cannot ignore whether those who would marry multiple partners, if they were allowed to do so, are also being treated unfairly. …  What too many advocates of marriage equality fail to see is that the compelling reasons that support same-sex marriage, such…

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Rain Man as Fall Guy

Recently the trial began in a London court of Thomas Hayes, the first banker, to face criminal charges in connection with the rigging of the London-based international inter-bank lending rate known as LIBOR. This was an apparently quite widespread malpractice within the banking sector for several years both before and after the global financial crisis of 2008. Already several major banks have had to pay hundreds of millions of dollars in fines for employees of theirs having been deemed complicit in it. Until last week’s trial opened, no one had faced criminal charges for complicity in this malpractice.   

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Congress versus the Courts: Official Immunity and the Dormant Commerce Clause

One of the issues involved in the dispute concerning the Dormant Commerce Clause is whether the action is taken by the courts or the Congress.  Defenders of the Dormant Commerce Clause argue that the courts will do a better job of protecting against state protectionism than would Congress. There are, of course, other areas where the court versus Congress question arises.  Bill Levin, who has posted on this blog in the past, discusses the issue relating to immunities for congressional officials: Comments made in Congress are protected by constitutional “speech or debate” immunity.  Federal officials operating within the scope of their duties…

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What Is Judicial Equality?

Law and Order Pillars in the Supreme Court during the day

When the topic is the Constitution, law professors and political science professors often talk past each other, and I’ll cop to talking past Randy Barnett, whose work commands respect even by way of dispute, first. But I’m not sure his reply at Volokh—which, in fairness, was primarily to Ed Whelan, mentioning my post here only in passing—reached my argument either. I never fired on the hill Barnett defended.

His post defended judicial review. I attacked judicial supremacy. There’s a difference.

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