Beyond Bork

Three views of the future

The Supreme Court will go on its merry legislative way.

The well-organized campaign against President Reagan's nomination of Judge Robert Bork to the Supreme Court demonstrated that the constituencies of the left not only are alive and well, but are every bit as interested in judicial nominations as they are in more traditionally political elections. The success of the campaign also demonstrated the ebb of the political acumen and influence of the lame-duck Reagan administration.

But two related aspects of the Senate's rejection of Judge Bork are surprising. First is the tactic selected by Bork's opponents, which was to portray him as a dangerous radical whose views on the Constitution were "outside the mainstream." This choice of tactics was surprising because the opponents' school of constitutional thought is barely 30 years old. In contrast, the view to which Bork subscribes—the idea that judges should decide constitutional cases by reference to the words and original meaning of the Constitution—dates back two centuries and indeed was the only school of constitutional theory until about 1950. The idea that the granddaddy of constitutional thought may now be relegated to the nursing home and that the new kid on the block now defines the "mainstream" is shocking.

However, the most serious consequence of Bork's defeat may be the acceptance of the theory articulately but disingenuously espoused by Harvard Law School Professor Laurence Tribe in his 1985 book God Save This Honorable Court. Professor Tribe argues that the Senate's power to give "advice and consent" on the president's nominations to the Supreme Court properly involves more than confirmation of a candidate's qualifications. According to Professor Tribe, the Senate should engage in plenary review of each nominee's judicial philosophy and political views to ensure that the president does not by his appointment alter the "balance" of the Court, by which Tribe necessarily refers to the present Court's activist direction. Tribe's thesis, conveniently unveiled in time for President Reagan's probable opportunity to appoint at least one more and possibly several more justices, was transparently calculated to support the Democratic controlled Senate's critical review of those potentially pivotal nominations.

Tribe, the likely first-choice nominee of the next Democratic president, strongly favors the Court's present direction. In his book Tribe reveals his activist predisposition by asking, in reference to the Constitution's Framers, "Should the peculiar opinions held, and the particular applications envisioned, by men who have been dead for two centuries always trump contemporary insights into what the contemporary Constitution means and ought to mean?" (The answer to Tribe's rhetorical question is that the Framers thoughtfully provided a mechanism for amending the Constitution.)

Herein lies the lesson of the Bork defeat. Over time the Court has become an overtly political institution. With the Bork nomination, it was finally treated as such. One need not have been a supporter of Judge Bork to believe that his confirmation hearings were an unseemly spectacle.

The Framers of our Constitution contemplated that three co-equal but separate branches of government would balance one another and serve as checks on the accumulation of power by interest groups, a phenomenon James Madison described as the "violence of faction." The judicial branch, headed by the Supreme Court, was intended to serve as a passive check on the other branches, empowered by the Constitution only to decide prescribed categories of "cases and controversies" within its jurisdiction. Indeed, the Constitution does not specifically authorize the Court to strike down state or federal laws on the basis of their alleged conflict with the Constitution, although the Court itself recognized this power of "judicial review" early in its history.

Alexander Hamilton stated in Federalist No. 78—written in 1788 to promote ratification of the newly drafted Constitution—that the Supreme Court was the "least dangerous" branch, because it would not exercise force or will, only judgment. Of the three branches, he wrote, the judiciary would be least likely to encroach upon "the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever."

The Supreme Court envisioned by the Framers would protect the rights enumerated in the Constitution but could not create additional rights or impose its own political agenda on an unconsenting polity. If the people wished to add rights to the Constitution, to delete existing rights, or to alter the ground rules in any way, they could do so by amendment as provided in Article V.

The undemocratic nature of the Supreme Court is essential to its function as a limit on the power of the democratic—and therefore political—branches. The independence and neutrality of the judiciary also serve to ensure that the Court itself does not become a threat to individual liberty. Citing Montesquieu, Hamilton acknowledged that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."

What was true in 1788 is no longer true today. By a process of accretion over the last three decades, the Court has become a political organ that unabashedly invents "rights" not found in the Constitution. So, it is to be expected that the confirmation of Supreme Court nominees will become a political contest, complete with demagogic television commercials, newspaper ads, and public opinion polls. If the Supreme Court is free to reach decisions based on nothing more than the individual justices' personal predilections, the potential beneficiaries of Supreme Court lawmaking will be highly motivated to support or oppose nominees solely on the basis of their political views, rather than their integrity, competence, or commitment to the rule of law.

What exactly has happened to transform the character of the Supreme Court? Some scholars trace the shift to the 1954 decision in Brown v. Board of Education, which ruled that segregated public schools violated the equal protection of the laws guaranteed by the 14th Amendment. More importantly, Brown ushered in an era of judicial supervision of local school administration and management. However laudable the result of Brown and its progeny, when a majority of the Court can direct state and local officials to reconfigure school districts and transfer students in order to maintain some "desirable" level of racial balance, the judiciary necessarily assumes an active political role. Likewise, the Court's creation and expansion of a constitutional right to privacy in the areas of contraception (Griswold v. Connecticut, 1965) and abortion (Roe v. Wade, 1973) may comport with some notion of sound public policy. But it is not the Court's function to legislate public policy.

Those who have benefited from judicial activism may have no qualms about the absence of any legitimate or principled basis for the Court's decisions, but their attitude would surely change if that awesome power were wielded by different judges with different views. The Court can, by a 5–4 vote, overrule the wishes of the 535-member Congress and the legislatures of all 50 states. And the only way the people can overturn a constitutional decision is by amending the Constitution, an intentionally cumbersome and difficult process.

Judicial activism is an exercise of raw power, subject to no democratic constraints. A Supreme Court that does not consider itself bound by the wording and intent of the written Constitution is not protecting individual liberties but violating the most important liberty: the right of democratic self-government. In a world where judges are free to "interpret" the Constitution according to their own notions of "fairness," interest groups will inevitably seek to control the courts just as they lobby the legislatures. The Bork hearings confirm that the stakes are high enough to justify any means to avert the appointment of unsympathetic judges.

Because judicial activism by its very definition politicizes the courts and corrupts the judicial appointment process, it should be opposed without regard to one's political views. We are no more secure from tyranny if the judges are activist conservatives or even libertarians than if they are activist liberals.

Proponents of judicial activism sometimes assert that the language of the Constitution is too general to guide decisions in particular cases and that judges must therefore look beyond the text and divine the "underlying principles" or "moral philosophy" of the Constitution. Unfortunately, like peering at the inkblots in a Rorschach test, divining moral philosophy from the Constitution is not likely to be guided by the text or even by the aspirations of its Framers. Rather, judges are likely to read their own philosophy into the Constitution. Surely our liberties deserve greater protection than the justices' preferences for Ronald Dworkin or John Rawls over Robert Nozick or Ayn Rand.

The ultimate irony and most telling contradiction of Bork's defeat is that the Senate, led by a group of liberal ideologues, rejected as "too controversial" a judge whose philosophy of judicial restraint would defer to the legislature unless a challenged law were clearly prohibited by some express provision of the Constitution. What one must understand, however, is that these liberal legislators are not acting contrary to their (at least short-term) self-interest.

As Hamilton feared, the activist judiciary and the legislature have become aligned. The legislature looks to the Court to enact by judicial fiat public policies that would not pass muster in the democratic political process. Like Professor Tribe, they pay lip service to the concept of "staying the course," when in fact they are simply promoting through judicial activism their political agenda.

Is this what we have to look forward to? Joe Biden and Ted Kennedy serving as cheerleaders for the "civil rights" lobby, labor unions, and feminist groups? Reading speeches written by Norman Lear into The Congressional Record? Quizzing Supreme Court nominees on how they would vote on controversial subjects? Televised hearings in which a nominee's prospects of confirmation are determined by public opinion pollsters? Where being photogenic is an asset and having published thought provoking opinions a liability?

So long as Supreme Court justices act like legislators, the appointment process will be conducted like a political campaign. The only long-term answer is to restore the Court to its intended role as the "least dangerous" branch, exercising judgment rather than force or will. (This solution is admittedly problematic, but that is another essay.) James Madison and Alexander Hamilton have been dead for close to two centuries, but the wisdom of their views is timeless.

Mark S. Pulliam and Mark W. Smith are attorneys in private practice in San Diego.

Defenders of the Constitution must do better than nominate moral eunuchs.

When Ronald Reagan nominated Judge Robert Bork for the Supreme Court, a furor began that culminated in a bitter political war and yet another defeat for Reagan's embattled presidency. The reason for that defeat, and the lessons to be drawn from it, go to the core of the role of law in a free society.

As depicted by Reagan, Judge Bork was the forthright defender of the integrity of the U.S. Constitution as a federalist document. He championed "states' rights"—a limited federal government and the freedom of the 50 states to enact laws they deem necessary, provided the Constitution is not directly contradicted.

But Judge Bork turned out to be a jurisprudential theorist who regarded the Constitution as expressing only the will of early colonialists. He believes that a state power may be exercised only when the Constitution explicitly authorizes that power and that, alternatively, individual rights ought to be protected only when this document explicitly protects those rights. The Bork view contradicts the idea that the U.S. Constitution contains certain moral and political truths that reinforce the (more or less) democratic process.

Judge Bork, however, adheres to a school of legal theory that discounts the importance of moral and political principles. He testified, for example, that he sees no general protection of individual rights in the Constitution and so cannot justify the 1965 decision in Griswold v. Connecticut that the state of Connecticut violated the right to privacy of persons wanting to use condoms in their bedrooms. In several other cases he said that, lacking a general right in the Constitution, the Court decided improperly even if by some other route of reasoning the same decision might have been justified.

Bork no longer sees any connection between the Constitution and some moral and political precepts—for example, natural rights (which he in 1968 thought do back this document). Rather, he now holds to a version of legal positivism, the idea that government authority comes from the written law alone, because that law expresses the will of the majority.

"If the Constitution is not the law, what authorizes a judge if not the judgment of the representatives of the American people?" he said recently in the Detroit News. "If the Constitution is not law, why is the judge's authority superior to that of the president, Congress, the armed forces, the departments and the agencies, and that of everyone else in the nation?"

This view holds that the Constitution should be treated respectfully because it emerged from a largely democratic process and therefore embodies majority opinion. But majorities can be dead wrong about a lot of things. Indeed, it is clear enough that the Founding Fathers and framers of the Constitution recognized the danger of majoritarianism and thus combined respect for democracy with individual rights—limits on how far the people's power, via the executive and legislative branches of government, may reach.

The Constitution's authority in fact derives from two conditions: It contains political principles that ought to govern a just society. And the majority of the people of the United States have consented to the legal protection of those principles. Neither of these conditions alone suffices to authorize enforcement of the law. Both are necessary for moral government.

By refusing to give credit to the moral dimension of America's legal history, Bork swept away a major tool by which the Reagan presidency might have recaptured the Supreme Court for a good and noble cause, namely, the Constitution. By insisting on a narrow reading of the Constitution, Bork left it to the reformers and radical opponents of that document's moral and political philosophy to advance their moral doctrines—and so capture the high ground.

People require a moral justification for a legal system that they are asked to respect and obey. Bork denied this to them and so a substantially fraudulent account of the American Constitution—at the hands of moral sentimentalists such as Sens. Joe Biden, Ted Kennedy, and Howard Metzenbaum—succeeded against his arid, morally relativistic viewpoint.

The lesson is that those who defend the American system of limited government must emphasize not just its efficiency and usefulness for producing prosperity but also its moral superiority. The liberal senators played it very well. They produced their sham rhetoric favoring individual rights as the moral component of the Constitution—even if in practice they support legislation that abridges individual liberty.

Yet that fraudulent language still rings more credible than the doctrines of majoritarianism, utilitarianism, and economic efficiency advanced by Judge Bork. Consider his response to the question, Why would you like to join the U.S. Supreme Court? He said it would be an intellectual feast. But surely, the sentimentalists responded, there is more to being on the Court—namely, a concern with justice and rights. And thus they ensured their victory.

Senior Editor Tibor Machan teaches philosophy at Auburn University and is editor of The Main Debate: Communism Versus Capitalism.

Yes, the Bork battle politicized the Constitution—and it's about time.

The defeat of Judge Robert H. Bork's nomination to the Supreme Court has been a source of satisfaction to all those, liberal, conservative, and libertarian alike, who believe that a vigorous Supreme Court is a crucial part of our scheme of limited government. But was this a Pyrrhic victory? Won only at the cost of politicizing the Supreme Court and the Constitution?

Two aspects of this problem need to be disentangled. In one sense, the nomination process was "politicized" and corrupted. Moments after Bork's nomination was announced, Ted Kennedy stepped onto the Senate floor and played to the gallery: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government."

Demagogic appeals like Kennedy's play to the fears and passions of the public. Such appeals are dangerous not only because they elicit fearful and passionate behavior but because they undermine confidence in our capacity for reasonable and reflective self-government. If it is this demagogic corruption of public deliberation that critics of the nomination process mean to root out, I can only agree.

Kennedy's strategy was not only corrosive but cynical: He underestimated the public's capacity to make an intelligent judgment on the Bork nomination. Southerners would hardly have turned against Bork—or any nominee—because of anything that Ted Kennedy or Norman Lear had to say. Yet, after Bork's testimony, only 31 percent of southerners favored his confirmation, with 51 percent opposing, according to a Roper poll.

Indeed, Kennedy and his gang did not need to appeal to demagogic rhetoric. By doing so they helped undermine the idea that Bork lost on his merits. If Kennedy had had a little more confidence in the public, arguing against Bork without resort to cheap shots and inflammatory rhetoric, the defeat would have been a cleaner and clearer display of the unacceptability of the New Right judicial program. That Bork was able, with some plausibility, to walk away crying smear is a shame, because the really important issue was not Robert Bork but the intellectual position he stands for. The jurisprudence of the New Right needs to be confronted head on: majoritarianism and moral skepticism, together with opportunistic references to original intentions, support a narrow reading of individual rights and judicial power that constitute a fundamental and dangerous revision of our system of government.

And here we reach a second, more interesting and highly beneficial sense in which the nomination process has been politicized. The Senate has, at least for the moment, put to rest the silly idea that "judicial philosophy" is not fair game for a confirmation proceeding. With Bork, the Senate was given another opportunity to do what it refused to do in the confirmation hearings of William Rehnquist and Antonin Scalia: critically evaluate the jurisprudence of the New Right.

To charge that Senate consideration of judicial philosophy politicizes the confirmation process is naive, because it supposes that the process is not already political. The president makes his nomination on grounds of ideology, so the real issue is only whether the Senate also has a right to evaluate a Supreme Court appointment on those grounds.

It is sometimes claimed that substantive Senate review of judicial philosophy confounds the president's appointment power. Well it might, but the president does not have the power to appoint, he has the power to nominate. The Senate has the power to confirm. Together they have the appointment power.

Should the Senate, nevertheless, defer to the president's political judgments? When the appointment in question is within the executive branch, a reasonable argument can be made for deference. The quality we look for in the executive branch is energy, or "decision, activity, secrecy, and dispatch," as Alexander Hamilton put it in the Federalist No. 70. Executive energy requires unity—singleness of purpose and coordinated authority. So there is a good constitutional case for deference (within reason) to a president's political judgment in choosing executive branch appointees.

The argument for deference simply does not hold, however, when the nomination is to a coordinate branch with life tenure. What we want in a Supreme Court justice is not ideological harmony with the executive but a clear understanding of constitutional principles. We want someone who has a reasonable view of what the Constitution means, someone capable of exercising judgment wisely. Here, then, there is no reason to exclude the Senate's judgment and every reason to think that its deliberative capacities will help ensure nominees with defensible constitutional positions.

Of course, some people seem to think both the president and the Senate should keep politics out of the appointment process. Behind this argument is the image of a Court above the fray, independent of partisan political pressure; only a Court above politics can protect minority and individual rights against majority tyranny. This image is valuable, but what keeps the Court above everyday partisan pressure is not a nonpolitical appointment process—something that has never existed. Rather, the structure of the judicial office itself helps ensure something more than narrowly "political" decisions. More systematically and formally than other public officials, judges listen to both sides of a dispute and justify their decisions with a reasoned argument.

Even more important to judicial independence, however, is the life tenure of the justices. As Hamilton wrote in the Federalist No. 78, "If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

Now there is, despite all this, a sense in which the open political discussion of the meaning of the Constitution will politicize the court. The right kind of Senate debate on judicial philosophy would be a debate over the best interpretation of the fundamental principles of political morality that the Constitution stands for. In this sense, however, the politicization of the court and the Constitution is a positive step that is long overdue.

The myth that the Senate's role is to consider only the intelligence and integrity of nominees is partly a consequence of the specious separation of law and politics. Just how this separation came about is a complex bit of intellectual and institutional history. It undoubtedly has something to do with the fact that university political science departments have increasingly abandoned the study of law to the law schools.

It must be related, as well, to the "pluralist" model of democracy, a model that sees democratic politics as a struggle of interest groups, with little room for such formalities as law. But the separation of law and politics is probably most directly a consequence of the notion that constitutional interpretation is the peculiar province of the courts and that the Supreme Court is the final interpreter of the Constitution, not only for the judicial branch but for the polity as a whole.

However it has come about, the sharp separation of constitutional law and politics is a massive disservice to both the theory and practice of constitutionalism in America. The Constitution is not merely a "legal" document; it is the founding instrument of our polity, what Sotirios A. Barber and Jefferey K. Tulis call a "planning document" to emphasize its comprehensive, political nature. Constitutional interpretation properly makes use of all the resources of political science broadly conceived and not merely the techniques of legal analysis.

The overriding reason for resisting the notion that constitutional interpretation is the peculiar province of the judiciary is the fact that the judges cannot possibly do the job themselves. The political task of the judiciary is to resist popular impulses averse to constitutional liberty by reviewing the conduct of elected officials. Judges are not a self-sustaining oligarchy—we would never accept such an arrangement. We believe in self-government. And so, in our system constitutional liberties will not survive unless elected officials and citizens themselves are willing to uphold them by supporting a vigorous and independent judiciary committed to enforcing constitutional limits on governmental action.

By openly debating judicial philosophy, the Senate conducts a vital national seminar on the meaning of constitutional self-government. By rejecting the radical restraint philosophy of Robert Bork, the Senate displayed a constitutional commitment to restrained, principled, liberal self-government.

We should not assume that the public, in turning against the Bork nomination, was simply swept away by Ted Kennedy's second-rate rhetoric. Some of the liberal demagoguery was counteracted by conservative demagoguery, and most of the televised hearings were concerned with genuine argument. My suspicion is that Kennedy and the shrill left underestimated the public's capacity for rendering a reflective judgment in favor of judicial review and the liberties which that practice helps sustain.

Politicians often underestimate the public. Sen. Slade Gorton (R–Wash.) traded his vote on the nomination of Daniel Manion to the federal bench for political favors from the White House. Senator Gorton might have thought that what the people of Washington really care about is the maximum yield of tangible benefits from the federal government. To their eternal credit, the people of Washington rewarded Senator Gorton with a one-way ticket home. Americans care, at least sometimes, about a certain quality of deliberation.

To nurture the public's capacity for restrained, liberal self-government, nothing can be better than a serious and publicly conducted discussion about the best interpretation of our basic law. Of course that politicizes the Constitution by helping to clarify the political values that the founding document stands for. It also helps constitutionalize our politics by helping to make fundamental liberties a livelier force outside the judicial forum.

The good news is that America's commitment to constitutionalism is stronger and sounder than it was before the Bork hearings. For providing an opportunity to sharpen our understanding of and commitment to constitutional liberties, we owe Judge Bork a debt of gratitude. For rejecting the substance of Bork's vision, we owe an even greater debt to the United States Senate.

Stephen Macedo is an assistant professor of government at Harvard University and author of The New Right v. the Constitution (Cato Institute).