Judicial supremacy versus constitutional supremacy

[Mark Tushnet]

A new item to add to Sandy Levinson's compendium:  Today the Supreme
Court vacated a death penalty case, over the dissents of Justices Scalia
and Thomas.  The dissenters agreed that today's decision followed
logically from a precedent from which they had dissented.  Justice
Scalia explicitly said that he thought that the Constitution, not a
prior decision, controlled.  So, does White House counsel Gonzales agree
with Justices Scalia and Thomas, who the person who hired him (not "his
client," as we know from the Clinton litigation) says are the justices
he most admires?  In which case, does he now disagree with the advice of
the political counselor Sandy quoted?  Or, are there differences in the
degree to which executive officials and judges ought to follow the
Constitution or the courts?  (I'm inclined to think that there are,
mostly on prudential grounds, leading me to think that it should be
easier for judges to disregard controlling precedent, even outside the
context of overruling, than for executive officials to do so.)
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