The Self-Heating Jurist
ROAMING THE REAL WORLD:
ROBERT BORK still has some explaining to do. Senators last week engaged Bork in an orgy of constitutional nuance that must have left most viewers dazed and confused. This was a mistake. Because his views are so clear (despite his obfuscations under oath) and so representative of the jurisprudence of the New Right, the occasion of Bork's attempted elevation to the Supreme Court and all the hoopla surrounding it provided a unique opportunity for a long-overdue debate. There is an intimate connection between a people's legal system and the kind of people they are. Similarly, there is a revealing relationship between the New Right's interpretation of American legal culture and the type of society they believe America to be.
We know how Robert Bork claims the Constitution should be interpreted. Better to ask now what that tells us about how Robert Bork and those of like mind interpret America and whether that interpretation is one that fits and honors our traditions and aspirations as a nation.
THE TWO decisions Bork most frequently and vehemently has criticized as usurpative "judicial coups d'etat" are Roe v. Wade, in which the Court found a (limited) right to abortion, and Griswold v. Connecticut, in which it established the right of married couples to purchase contraceptives. But, we are told, the chances are virtually nil that the infringements upon liberty they sought to combat would return if a Bork-inspired court overturned them. America has changed, the argument goes, and even if, say, the abortion issue were thrown back to the states, few would re-enact the draconian antiabortion statutes of the past. And, surely, no state would ban contraceptives, as Connecticut sought to do even for married couples in 1964.
But why are these statutes and so many like them now untenable? What is to account for this change (for the better) in the political landscape? The answer is clear: the political vision and constitutional leadership of the Court. Segregated schools, remarkably the norm in the South a mere 30 years ago, are unthinkable today because of the foresight of the nine members of the Warren Court who handed down Brown v. Board of Education and the courage of the southern federal judges who enforced it.
Now, Bork's support for Brown is official (albeit, as Ronald Dworkin demonstrated in the New York Review of Books, wholly inconsistent with his judicial philosophy). He no longer sees the Civil Rights Acts as undermining the fabric of freedom in America, as he did in a 1963 article in The New Republic.
He now avers that more than just "explicitly political speech" is protected by the First Amendment (though the reasoning and interpretive methods he used in reaching that conclusion again were wholly inconsistent with his stated judicial philosophy.)
All of these great issues Bork now sees clearly. At best, his "evolution" betrays a lack of vision unworthy of a Supreme Court justice. At worst, he has tailored or misrepresented his views as part of a campaign for a seat on the Court. It's not an attractive choice to be presented with in a nominee for the Supreme Court.
Let's assume the best. It's easy to judge a decision in retrospect. It's of only marginal honor to Bork that he is able to affirm now the success of decisions and legislation he vehemently derided when they were rendered. It's not unfair to ask of a nominee to the U.S. Supreme Court where he was when it counted, when the great issues of his time were being debated and decided. What claims might Justice Bork dismiss today whose validity and utility will seem painfully clear tomorrow?
THE PROBLEM is that Bork's America is an unprincipled polity, in which morality is what the majority says it is and individuals have no prior claim to rights against the state. His philosophy is informed by an astounding moral skepticism alien to American tradition and the way most Americans think about politics. To him, people only have "gratifications", "interests" and "preferences". "Every clash between a minority's freedom and a majority claiming power to regulate involved a choice between the gratification's of the two groups" and "there is no principled way to decide that one man's gratifications are more deserving of respect than another." Thus, all an honest judge can do is "let the majority have its way."
Of course, Bork's deep moral skepticism means that the victory he affords the majority has no moral force or validity over others. His judicial philosophy isn't informed by an coherent democratic theory that allows him at least to claim that its right for majorities to rule. Bork's formulation thus is no more than a slightly sophisticated version of the doctrine that might makes right.
Yet Americans make distinctions between "mere gratifications" and genuine moral claims all the time. Our politics is often about mere interests, but most people complain about that and believe politics is at its best when principled. That is why we honor Lincoln and Martin Luther King.
What Bork fails to grasp is that at the national level, the level of constitutional interpretation and adjudication, America is and must be one nation indivisible under principle, if not God. That is all we have that unites us. Ours is an intensely pluralistic culture and there are, quite simply, times when people honestly and sincerely disagree--over what the law says, what our political institutions stand for, what the purpose of our common life is.
THAT'S WHERE judicial review fits in. Properly construed and executed, it serves and honors democracy by providing within it a safe haven for reasoned deliberation. But it also can do much more: by holding out the promise that otherwise irreconcilable differences ultimately will be decided upon principles that apply equally to all, judicial review forces all political participants to consider fundamental principles and the nature of our common life in ordinary political debate and discourse.
If there was one thing the Framers of 1787 feared most, it was strict majoritarian rule and "democratic" imposition of the majority's morality over all. If there is one kind of justice of which we don't need another on the Supreme Court, it is one such as Bork who confuses pluralism with relativism and a nation's tradition with its history.
In his America, freedom for behavior and belief out of sync with that of the majority rests "upon the enlightenment of society and its elected representatives." "That is hardly a terrible fate," he concludes. "At least a society like ours ought not to think so."
Alas, ours is not such a society, even if Robert Bork thinks it is. His attempt as a judge to avoid assertions of fundamental principles is no less clear a claim as to what those values are than that made by the "activists" with whom he so disagrees.