To the Editors:
Professor Ronald Dworkin has twice in your pages launched an extraordinary attack upon Judge Robert Bork, depicting him as a right-wing ideologue who uses an “original intent” constitutional theory as a mere mask for lawless judging [NYR, November 8, 1984; August 13, 1987]. But Bork’s judicial practice is wholly consistent with Dworkin’s jurisprudential theory, as that is expressed in the justly celebrated article “Hard Cases” (reprinted as Chapter 4 in Taking Rights Seriously, Harvard University Press, 1977). Hence it appears that Dworkin’s real complaint is simply that he disagrees with Bork on controversial questions of constitutional right.
In imputing to Bork a “hostility to ordinary legal argument,” Dworkin concentrates his fire on the opinion in Dronenberg v. Zeck, 741 F.2d 1388 (1984), in which a three-judge panel of the Court of Appeals, D.C. Circuit, affirmed a lower-court decision which upheld Dronenberg’s discharge from the Navy for having engaged in homosexual acts. Dronenberg argued that his conduct was shielded by the constitutional right to privacy. The Supreme Court has never held that consensual homosexual acts come within the ambit of this right; and it summarily affirmed the decision in Doe v. Commonwealth’s Attorney, 403 F.Supp. 1119 (1975), which had upheld Virginia’s criminal sodomy statute. Despite this, Dronenberg argued that the cumulative effect of important recent Supreme Court decisions was to establish a fundamental constitutional right to engage in any manner of consensual, nonharmful sexual practice. (These decisions comprise inter alia: Griswold v. Connecticut, 381 US 479 [1965], state cannot forbid dissemination of birth control information and devices to married couples; Eisenstadt v. Baird, 405 US 438 [1972], unmarried persons have a privacy right to purchase and use contraceptives; Roe v. Wade, 410 US 113 [1973], women have an absolute privacy right to abortion during the first trimester of pregnancy.)
Without contending that the rejected constitutional claim was clearly correct, Dworkin castigates Bork for having “brushed aside” Dronenberg’s arguments, and for having expressed the belief that “he has no responsibility to treat the Constitution as an integrated structure of moral and political principles, and no responsibility to respect the principles latent in past Supreme Court decisions he regrets were made.” But examination of Dronenberg does not corroborate this description of Bork’s practice. In rejecting Dronenberg’s claims, Bork held firstly that he was bound by the Supreme Court’s summary affirmance in Doe. This was a controversial conclusion, but is one that other courts, and other judges on Bork’s court, have also reached. (See, e.g., Lovisi v. Slatyton, 539 F.2d 349, 352 [4th Cir. 1976] [en banc]; Matlovich v. Secretary of the Air Force, 13 EPD 6088 [D.D.C. 1976]; and the opinion of Judge Ginsberg in the Appeals Court decision refusing en banc rehearing, Dronenberg v. Zech, 746 F.2d 1579, 1581 [1984].)
Secondly, after an extensive survey of the privacy cases, Bork concluded that they express no clear principle yielding the constitutional right which Dronenberg claimed. In the course of his survey, Bork argued that the Supreme Court had created “new” constitutional rights in those decisions. His “original intent” constitutional theory was not a premise in his argument, but only the claim (which Dworkin calls a platitude) that “…[constitutional] rights must be fairly derived by standard modes of legal interpretation from the text, structure, and history of the Constitution” (741 F.2d at 1396 n.5). Bork intimated that the Court should not create new rights, but declared himself bound as a circuit judge to enforce whatever rights it might announce (id). But he argued too that a lower court ought not extend constitutional rights which it believes to be new beyond the boundaries expressly delineated by the Supreme Court.
This last particularly aroused Dworkin’s ire. But his feeling finds no support in his philosophical account of judicial obligation (which I take to be the best that anyone has yet devised). In “Hard Cases” (and in his later writings), Dworkin argued that legal rights are institutional moral rights, which are determined by the best moral theory which explains a jurisdiction’s settled legal standards. These comprise (in the present connection) the Constitution, Supreme Court decisions, and those of the inferior federal courts and state courts. To decide a controversial case—one in which competent lawyers may reasonably disagree as to its correct result—a judge must employ what seems to her to be the best theory of institutional rights that she can devise or find. However, no theory will be able to explain all of a jurisdiction’s settled standards: those standards which a judge’s theory cannot fit he must categorize as mistaken. A mistake may retain its “specific authority,” but he will accord it no “gravitational force,” i.e., no authority to influence legal results which lie beyond the ambit of that standard’s clear holding. One hallmark of an institutional mistake is “that it is now widely regretted within the pertinent branch of the profession” (Taking Rights Seriously, page 122).
Judge Bork evidently considers the privacy decisions to be institutional mistakes; and, as Dworkin’s jurisprudential theory recommends, he is willing to enforce their specific authority, but to accord them no gravitational force. Bork’s view of these decisions is undoubtedly controversial, but is one that is widely held among judges, constitutional scholars, and lawyers generally. This is particularly true of the abortion decision, Roe v. Wade. (For a sympathetic yet critical account of that decision, see L. Tribe, American Constitutional Law, 1978, pages 924–934.) In a recent survey of 348 states and 57 federal judges, 44 percent thought that case rightly decided, whereas 39 percent thought it mistaken, of which number roughly half thought it should be overruled (The New York Times, August 2, 1987, page A-22). It is also relevant that, in this same survey, 50 percent of the judges said that, were they senators, they would vote to confirm Bork’s appointment to the Supreme Court, 24 percent would be opposed, and the rest had no opinion.
Dronenberg therefore was a controversial, yet legally responsible, decision. It provides no support whatever for Dworkin’s claim that Bork has “only right-wing dogma to guide his decisions.” And it is simply false to maintain that Bork is outside the pale of respectable legal opinion and practice. At bottom, Dworkin’s complaint is simply that Judge Bork holds conservative political views and disagrees with him on issues of constitutional right. This is a perfectly good reason for Dworkin to join the political opposition to Bork’s confirmation to the Supreme Court. But the professor of jurisprudence at Oxford University ought frankly to state the grounds on which he is opposed.
M.B.E. Smith
Smith College
Northampton, Massachusetts
Ronald Dworkin replies:
Professor Smith discusses only my remarks about Judge Bork’s opinion in the Dronenburg case, and therefore neglects most of my argument, which analyzed Bork’s opinions, speeches, and academic writing as a whole. Nevertheless Smith’s suggestions about Bork’s opinion in that single case are illuminating and merit an extended reply.
In Dronenburg Bork went out of his way to attack a large number of past Supreme Court decisions that his right-wing supporters particularly disliked. He said that since these decisions invented new rights, he had no obligation to respect the principles they rested on, or to apply those principles in other circumstances. So though the Court had appealed, in its abortion and contraception decisions, to principles that would equally protect homosexuals, Bork refused to apply those principles and upheld the Navy’s decision to dismiss a homosexual after many years of honorable service.
Smith describes very clearly the argument that Bork should have made, as a judge in our legal system, to defend his refusal to apply a principle embedded in a string of past Supreme Court decisions. As Smith says, Bork should have tried to show that these decisions were inconsistent with the Supreme Court’s more general record; he should have tried to show, that is, that the principles the mistaken decisions relied on had in fact been rejected in more important or sweeping or fundamental or numerous other decisions. But Bork made absolutely no effort even to sketch an argument of that kind. He simply begged the question by saying that the decisions he disapproved invented new rights, as if no more argument were needed than his personal thumbs down.
It is plain enough why Bork did not attempt to make the normal, lawyerlike argument Smith recommends. Bork is not a legal conservative, anxious to protect law’s overall integrity, but a radical: his opinion in Dronenburg signaled his readiness, if he is appointed to the Supreme Court, not just to prune decisions that time had shown to be inconsistent in principle with the main lines of constitutional development of the last several decades, but wholly to reverse that development by attacking the main lines themselves. That is, I believe, the least understood part of the threat Bork’s nomination poses. It is certainly possible to criticize isolated Supreme Court decisions as mistakes in the application of more general principles the Court has mainly accepted. (Several legal scholars have in fact criticized the abortion decisions in that way.) But Bork defends his challenge to controversial decisions with claims so broad and radical that they would, if applied with even minimal consistency, sweep away a good part of the constitutional structure most Americans now take for granted. His attack, as he has himself said, embraces a “large proportion of the most significant constitutional decisions of the past three decades.”
In his Dronenburg opinion alone, Bork condemns as having “created new rights” not only the Court’s central abortion decision, Roe v. Wade, but its various decisions about contraception, including the landmark Griswold v. Connecticut, which held that married couples have a right to use contraceptives if they wish, and that part of its decision in Loving v. Virginia, which held that a statute forbidding interracial marriages violated constitutional rights to liberty. He has denounced the Court’s 1922 decision in Meyer v. Nebraska declaring unconstitutional a state law making it a crime to teach a foreign language to children; and its 1925 decision in Pierce v. Society of Sisters, which struck down a law making religious or private schools illegal.
Behind this impressive line of decisions, all of which Bork rejects as grave mistakes, lies a central principle of our constitutional law: that liberty is secured only when the government leaves citizens alone to decide the most intimate or personal questions about their own lives for themselves, except when urgent social policies make that impossible. Of course reasonable people disagree about the right balance between individual liberty and such urgent social needs. But Bork’s indefensible interpretation of constitutional intention, that the Constitution contains no rights beyond topics or areas the “framers” actually discussed, would read liberty out of the Constitution altogether: state legislators would have the unchecked power to regulate the most private aspects of personal and family life in any way they wished.
