On Friday, Daily Wire Editor-at-Large Josh Hammer — a Federalist Society speaker, frequent commentator on legal issues, and a constitutional attorney by training — joined “The Conservative Review with Daniel Horowitz” podcast for a wide-ranging conversation about a whole host of legal and judicial issues. The duo discussed the current U.S. Supreme Court term, the merits and flaws of the Court’s current “conservative” members, what to expect from the Court’s attention-grabbing cases this term, the strategic and visionary short-sightedness of many on the legal Right, the lay of the land of the modern “conservative legal movement,” and the ultimate problem of reclaiming the Constitution from our culture of judicial supremacy. The lattermost, judicial supremacy, is a topic on which Hammer has announced he will have a piece of legal scholarship published this spring.
After Horowitz initially set the table for discussion, Hammer began the extensive chat by discussing why, on a first-principles level, the American people and the legal profession alike have lost a proper conception of what “the judicial power” in Article III of the U.S. Constitution actually means — including the extent and scope of the judicial branch’s binding (or lack thereof) authority:
What we’re lacking on the broader 35,000-foot altitude level … is that we don’t understand what “the judicial power” and the Vesting Clause of Article III actually means. And contrary to to the judicial supremacists — contrary to the people who will elevate the 1958 judicial atrocity of Cooper v. Aaron, which established judicial supremacy to the highest paean of the judicial totem pole — [what they say about judicial power] is actually a direct contravention of the expressed text of Chief Justice Marshall’s famous decree in Marbury v. Madison itself. …
In Marbury, Chief Justice Marshall famously says: “[I]t is emphatically the province of the Judicial Department to say what the law is.” That’s what everyone always quotes, but what they never quote, Daniel, is literally the very next sentence after that, where Marshall also says: [“Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.”] …
[T]he crux of “the judicial power” … applies obviously to the parties in the suit [but] it goes no further whatsoever. … This ultimately gets you to Abraham Lincoln, who obviously defied the Court in Dred Scott and all of that. So on a broader level, we as a society are … completely missing the scope of judicial power in this country and the legal academy, the legal profession — as someone who went to a top law school, I can tell you it is generally inculcated in the rising generation of law students this erroneous belief that is the basic nature of the binding authority of the courts. It’s very tragic.
Later in the dialogue, Horowitz and Hammer discussed and previewed the current Supreme Court term, discussed the problems in the juridical approaches of each of Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Neil Gorsuch, and explained why Justice Clarence Thomas — the purest originalist on the Court — is a unique and irreplaceable figure. They explained why the federal judiciary will always be a losing “one-way ratchet” for conservatives unless and until the “legal conservative movement” awakens, en masse, to the danger of subscribing to the judicial supremacist paradigm.
WATCH: