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The Bork Nomination

President Reagan’s nomination of Judge Robert Bork to succeed Justice Lewis Powell on the Supreme Court presents the Senate with an unusual problem. For Bork’s views do not lie within the scope of the longstanding debate between liberals and conservatives about the proper role of the Supreme Court. Bork is a constitutional radical who rejects a requirement of the rule of law that all sides in that debate had previously accepted. He rejects the view that the Supreme Court must test its interpretations of the Constitution against the principles latent in its own past decisions as well as other aspects of the nation’s constitutional history. He regards central parts of settled constitutional doctrine as mistakes now open to repeal by a right-wing court; and conservative as well as liberal senators should be troubled by the fact that, as I shall argue here, he has so far offered no coherent justifications for this radical, antilegal position.

It would be improper for senators to reject a prospective justice just because they disagreed with his or her detailed views about constitutional issues. But the Senate does have a constitutional responsibility in the process of Supreme Court appointments, beyond insuring that a nominee is not a crook or a fool. The Constitution is a tradition as well as a document, and the Senate must satisfy itself that a nominee intends in good faith to join and help to interpret that tradition in a lawyerlike way, not to challenge and replace it out of some radical political vision that legal argument can never touch.

The Senate’s responsibility is particularly great in the circumstances of the Bork nomination. Bork is the third justice added to the Court by an administration that has for seven years conducted an open and inflexible campaign of ideological appointments on all levels of the federal courts, hoping to make them a seat of right-wing power long after the administration ends. Reagan made no effort to disguise the political character of Bork’s appointment: he said that Bork is “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint,” and that he “shares my view” of the proper role of the Court. Conservative pressure groups are already raising money to support the nomination, and the right-wing New York Post has challenged liberals to “make our day” by opposing it.

Bork’s appointment, if confirmed, promises to achieve the dominance of the right on the Supreme Court that Reagan’s previous appointments failed to secure. For Justice Powell has been a swing vote, siding mainly with the right on issues of criminal law but with more liberal justices on other issues of individual rights, and he has provided the fifth and conclusive vote, one way or the other, on many occasions. If Bork votes as those who support him have every reason to expect he will, the Court will have lost the balance that Powell provided, and it will have lost the opportunity for cases to be decided one by one on the issues, rather than on some simple ideological test. So the Senate should not apply the relaxed standards it does when a president seeks merely to have his own constitutional philosophy represented on the Supreme Court. The Bork nomination is the climactic stage of a very different presidential ambition: to freeze that institution, for as long as possible, into an orthodoxy of the president’s own design.

Few nominees, moreover, have so clearly and definitively announced their positions on matters they are likely to face if confirmed. Bork has declared, for example, that the Supreme Court’s decision in Roe v. Wade, which limited a state’s power to make abortion criminal, was itself “unconstitutional,” that the Constitution plainly recognizes the propriety of the death penalty, and that the Court’s long string of decisions implementing the “one man, one vote” principle in national and local elections was seriously mistaken. He has called the suggestion that moral minorities such as homosexuals might have constitutional rights against discrimination legally absurd, and has doubted the wisdom of the constitutional rule that the police may not use illegally obtained evidence in a criminal trial. In a dissenting opinion on the Circuit Court, which the majority said contradicted strong Supreme Court precedent, he said that Congress cannot challenge in court the constitutionality of the president’s acts.

The New York Times reports White House officials as confident, moreover, that Bork will support the administration’s extreme position against affirmative action, which the Supreme Court has rejected in several close votes. And Bork has strongly suggested that he would be ready, as a justice, to reverse past Supreme Court decisions he disapproved of. (“The Court,” he said, “ought to be always open to rethinking constitutional problems.”) Nominees often decline to answer senators’ detailed questions about their views on particular issues, out of a fear that public announcement would jeopardize their freedom of decision later. But Bork has given his own extreme views such publicity that senators need not scruple to ask him to defend them.

Most commentators have assumed that Bork has a well-worked-out constitutional theory, one that is evident and straightforward, though very conservative. The Constitution has nothing in it, Bork says, except what the “framers”—“those who drafted, proposed and ratified its provisions and various amendments”—put there. When a case requires the justices to fix the meaning of an abstract constitutional proposition, such as the requirement of the Fourteenth Amendment that government not deny any person “equal protection” of the law, they should, according to Bork, be guided by the intention of the framers, and nothing more. If they go beyond what the framers intended, then they are relying on “moral precepts” and “abstract philosophy,” and therefore acting as judicial tyrants, usurping authority that belongs to the people. That, Bork believes, is exactly what the Supreme Court did when it decided the abortion case, the one-man-one-vote cases, the death penalty and affirmative action cases, and the other cases of which he disapproves.

Is that an adequate theoretical explanation of his radical constitutional positions? The idea that the Constitution should be limited to the intentions of the framers has been very popular among right-wing lawyers since Attorney General Meese proclaimed it the official jurisprudence of the Reagan administration. It has been widely criticized, in familiar arguments that neither Bork nor any member of the administration has answered.1 I shall not pursue those arguments in this article, however, because I am interested, as I said, in a different issue: not whether Bork has a persuasive or plausible constitutional philosophy, but whether he has any constitutional philosophy at all.

In order to explain my doubts I must describe, in some detail, the way Bork actually uses the idea of original intention in his legal arguments. He offered his most elaborate account of that idea in an article written many years ago, discussing the Supreme Court’s famous decision in Brown v. Board of Education, which used the equal protection clause to declare racial segregation of public schools unconstitutional.2 The Brown case is a potential embarrassment to any theory that emphasizes the importance of the framers’ intentions. For there is no evidence that any substantial number of the congressmen who proposed the Fourteenth Amendment thought or hoped that it would be understood as making racially segregated education illegal. In fact, there is the strongest possible evidence to the contrary. The floor manager of the bill that preceded the amendment told the House of Representatives that “civil rights do not mean that all children shall attend the same school,” and the same Congress continued the racial segregation of the schools of the District of Columbia, which it then administered.3

When the Supreme Court nevertheless decided, in 1954, that the Fourteenth Amendment forbids such segregation, many distinguished constitutional scholars, including the eminent Judge Learned Hand and a distinguished law professor, Herbert Wechsler, had serious misgivings. But the decision has by now become so firmly accepted, and so widely hailed as a paradigm of constitutional statesmanship, that it acts as an informal test of constitutional theories. No theory seems acceptable that condemns that decision as a mistake. (I doubt that any Supreme Court nominee would be confirmed if he now said that he thought it wrongly decided.) So Bork’s discussion of Brown v. Board of Education provides a useful test of what he actually means when he says that the Supreme Court must never depart from the original intention of the framers.

Bork says that the Brown case was rightly decided because the original intention that judges should consult is not some set of very concrete opinions the framers might have had, about what would or would not fall within the scope of the general principle they meant to lay down, but the general principle itself. Once judges have identified the principle the framers enacted, then they must enforce it as a principle, according to their own judgment about what it requires in particular cases, even if that means applying it not only in circumstances the framers did not contemplate, but in ways they would not have approved had they been asked.

Since the framers of the Fourteenth Amendment did not believe they were making segregated schools unconstitutional, nothing less than that expansive interpretation of “original intention” could justify Brown as a decision faithful to their intent. And Bork has made it plain on many other occasions that the expansive interpretation is what he has in mind. In a recent case in the DC Circuit Court of Appeals, for example, he joined a majority decision declaring that the First Amendment protected newspaper columnists from a libel suit brought by a Marxist political scientist after they had reported that he had no standing in his profession.4 Bork’s then colleague on that court, Antonin Scalia, who has since been promoted by Reagan to the Supreme Court, dissented, and chided Bork and the other members of the majority as being faithless to the intention of the framers of the First Amendment, who plainly did not suppose that they were changing the law of libel in the way the majority decision assumed. Bork replied, once again, by insisting that a judge’s responsibility is not to the particular concrete opinions the framers might or might not have had about the scope of the First Amendment principle they created, but to that principle itself, which, in his view, required that the press be protected from libel suits in ways the framers would not have anticipated.

That seems right. If we are to accept the thesis that the Constitution is limited to what the framers intended it to be, then we must understand their intentions as large and abstract convictions of principle, not narrow opinions about particular issues. But understanding their intentions that way gives a much greater responsibility to judges than Bork’s repeated claims about judicial restraint suggest. For then any description of original intention is a conclusion that must be justified not by history alone, but by some very different form of argument.

  1. 1

    The idea of an institutional intention is deeply ambiguous, for example, and political judgment is required to decide which of the different meanings it might have is appropriate to constitutional adjudication. (See my book, Law’s Empire, Chapter 9.) And the original intention theory appears to be self-defeating, because there is persuasive historical evidence that the framers intended that their own interpretations of the abstract language they wrote should not be regarded as decisive in court. See H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review, Vol. 98, p. 885 (1985).

  2. 2

    See Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal, Vol. 47, pp. 12–15 (1971).

  3. 3

    See Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Harvard University Press, 1977), pp. 118–119.

  4. 4

    See Bork’s concurring opinion in Ollman v.Evans 750 F2d 970 (1984).

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