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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.

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