The Tempting of America: The Political Seduction of the Law
Battle for Justice: How the Bork Nomination Shook America
The People Rising: The Campaign Against the Bork Nomination
Three years ago, on October 23, 1987, the Senate voted not to confirm Ronald Reagan’s nomination of Robert Bork to serve as an Associate Justice of the Supreme Court of the United States. Only eleven Supreme Court nominations have been rejected by the Senate, and no nominee has ever been defeated by as large a margin as Bork. Yet no one accused Bork of private vices, or challenged his intellectual competence. The campaign against him attacked his ideas about the Constitution, and his attitude toward those—judges, academics, politicians, and citizens—who held different views from his. The battle was fought not in the back halls of Congress but in public: Bork’s opponents conducted an elaborate and effective national campaign in the press and television, and the televised hearings on his confirmation concentrated national attention on the Constitution and on constitutional theory to a degree that has seldom if ever been equaled in our history.
Was Bork fairly treated? Was his defeat good or bad for constitutional justice in the United States? In his own book, The Tempting of America, Bork himself claims that he was defeated, by unscrupulous means, precisely because his appointment would have helped to restore legitimacy to constitutional adjudication.
Much of his book is devoted to a critical historical survey of constitutional law, in which Bork’s aim is to show the extent to which the justices of the Supreme Court have allowed their own political convictions to influence their decisions. He claims that justices have made political decisions from the earliest days of the Court onward, and that this practice, which he believes to be outrageous, became firmly entrenched, the rule rather than the exception, in the modern Court.
Bork’s complaint that the modern Court plays politics is well illustrated by his discussion of Griswold v. Connecticut, the 1965 decision which held that states may not prohibit the use of contraceptives. In that case, the Court recognized that individuals have a constitutional right, which it called a right of “privacy,” to be free from governmental interference in certain matters of personal choice. It relied on the Griswold case as a precedent when it held, in its 1973 decision in Roe v. Wade, and in other cases, that the right of privacy includes a limited right to an abortion. In 1986, however, in Bowers v. Hardwick the Court rejected the claim, which also relied heavily on Griswold, that laws prohibiting sodomy are unconstitutional. Bork offers the Griswold decision as a clear and extreme example of judicial politics. He deplores the result in Roe v. Wade as an extension of the mistake the court made in the Griswold case, and applauds the result in Bowers as a return to “the original understanding” of the Constitution.
In his confirmation hearings, Bork suggested that he would not want to reverse the outcome of the Griswold case; but in his book he returns with some vehemence to his earlier clear opposition to that decision. His characterization of Griswold now is provocative and evidently intended to be:
Some years ago I illustrated the difference between a judge and a legislator in a way that drew down a good deal of rhetorical abuse during the confirmation struggle. But being both stubborn and correct on this point, I shall employ the illustration once more and expand upon it. Given the fact that no provision of the Constitution spoke to the issue, my argument went, the Court could not reach its result in Griswold in a principled fashion. Given our lack of consensus on moral first principles, the reason is apparent. Every clash between a minority claiming freedom from regulation and a majority asserting its freedom to regulate requires a choice between the gratification (or moral positions) of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the competing claims.
Bork’s antipathy to what he regards as judicial politics—which he defines as the Court’s assertion of its own values in order to declare legislation unconstitutional when the Constitution “has not spoken”—is apparent in his criticism of Griswold. Since Americans do not as a people agree about fundamental questions of political morality, he argues, the only appropriate way for the nation to resolve controversies that involve such questions is by some process that respects majority will. When judges exercise their own political judgment instead of interpreting the Constitution, they substitute their will for the will of political majorities, and thereby assume a power which is not rightly theirs. Bork assumes that the cogency of this blunt argument will be clear to anyone who fairly considers the matter.
It makes him angry, therefore, that modern constitutional theorists such as Laurence Tribe and Ronald Dworkin believe that political judgment has a place in modern constitutional law, and that they even applaud its use. These theorists and the decisions they endorse are not merely wrong, he thinks; they are wrong in the same deep, demonstrable, and irritating sense that crackpot inventors of perpetual motion machines are wrong. Hence the confident title of the chapter in which his theoretical argument culminates: “The Impossibility of All Theories that Depart from Original Understanding.”
Bork sees the problem as not so much a matter of bad judgment as of bad motives. The erring theorists, he is satisfied, are members of a left-leaning intellectual elite that cannot win elections and has undertaken to win lawsuits instead. These intellectual enemies of democratic government share the ideology of the very politicians and groups that opposed Bork’s nomination, including liberal Democrats and Republicans and civil rights organizations such as the ACLU. These academic and political forces believed, Bork writes, that he had to be defeated because he would have been a strong voice against the political misuse of the Constitution.
In order to defend his dramatic claims, Bork must establish, at the very least, that it is possible and desirable for judges to decide constitutional controversies without making political judgments of the sort he deplores. To do so he puts forward the old idea that judges should interpret the Constitution in accordance with what its provisions would have been understood to mean at the time they were drafted and ratified. In that view, constitutional meaning is a matter of historical fact, not the judges’ own political convictions. Fidelity to the “original understanding” of the Constitution is the only appropriate standard for the decision of constitutional cases.
“All that counts,” Bork writes, “is how the words used in the Constitution would have been understood at the time.” Any other test of constitutional meaning will invite or require constitutional judges to consult their own political convictions, and thus indefensibly favor the views of the elite political class from which judges are drawn over the views that have prevailed in the popular political process. That is the simple thesis Bork proposes to justify his own constitutional views and to confound his academic and political critics.
These critics have urged many strong objections to the original understanding thesis, however. If Bork honestly and consistently held that thesis, as he says he does, we would have to consider whether his book answers those objections, and we should then have to review the often complicated arguments of the academic and judicial theorists whom Bork so dislikes. But this is unnecessary, because in fact Bork does not hold to his own announced thesis in any serious way; while continuing to make use of the rhetoric of original understanding of the Constitution, he actually undermines that theory through various concessions and modifications. Indeed, he tacitly accepts the main objections of the very critics he ridicules, and the view that he actually defends is not so different from their own.
Bork clearly recognizes that the terse and open-ended language of the Constitution cannot by itself decide constitutional cases, even if the judge has at hand a dictionary of eighteenth-century usage. The Constitution’s very abstract provisions, which use phrases like “freedom of speech,” “due process of law,” “equal protection,” and “cruel and unusual punishment,” have, by themselves, no plain and precisely applicable meaning now and had none then, as Bork concedes.
Moreover, neither he nor anyone else who has thought seriously about the matter believes that the drafters of the Constitution and its amendments, or the generation of Americans on whose behalf these provisions were ratified, had formed in their minds shared principles that would make self-evident the exact application and the modern consequences of the abstract principles embodied in the Bill of Rights. So he concedes that his injunction to attend solely to the question of “how the words used in the Constitution would have been understood at the time” cannot be carried out either by consulting historical dictionaries or by retrieving the thoughts of long-dead politicians or voters.
Bork’s concessions on these points are explicit: at several points, for example, he observes that even so plain-speaking a provision as the First Amendment’s “Congress shall make no law…abridging freedom of speech,” has required constitutional judges to work out a complex scheme for the protection of speech, full of subtle distinctions that depend upon a wide range of interpretative judgments, which themselves depend on questions of value not answered in the text, even as it was originally understood.
Bork’s understanding of the complexity of constitutional analysis and its dependence on controversial judgments of value is revealed, for example, in his own analysis of the First Amendment. Obscene speech, he writes, does “not deserve constitutional protection.” As for so-called “subversive” speech, he has this to say:
The reason [that speech advocating the forcible overthrow of the government or speech advocating the violation of law should not be constitutionally protected]…is plain. The Constitution creates a republican form of government in which political speech is essential to arrive at consensus on various issues. Majorities make up their minds and either do or do not enact laws. In such a government, speech advocating the forcible overthrow of the government and the seizure of power by a minority has no value because it contradicts the premises of constitutional democracy. If the speech succeeds, democracy and individual freedom are at an end. For the same reason, speech that advocates violation of the law or civil disobedience is an attempt to defeat by lawlessness what the majority has decided.
He is harshly critical of the Court’s decision last year that burning the flag is a gesture of protest protected by the First Amendment, arguing:
The national flag is different from other symbols. Nobody pledges allegiance to the Presidential seal or salutes when it goes by. Marines did not fight their way up Mount Suribachi on Iwo Jima to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.
These positions are, of course, highly controversial. Notice, however, the materials Bork draws upon to support them. He only rarely invokes the language or history of the Constitution in discussing the First Amendment’s protection of speech, and he never offers either as a complete or decisive guide to its correct interpretation. Instead, he offers exactly what the judges and writers he criticizes offer in support of their arguments: reflections and argument about issues of political morality.
He poses the same questions as his opponents: What is it about speech that justifies its having special constitutional protection? When do the reasons for protecting speech apply to particular kinds of speech and when to they not? Do they apply, for example, when the speech in question involves obscenity? Are there other, competing values sufficiently important to override the reasons for protecting speech, even when these reasons do apply? Does the symbolic importance of the flag justify overriding freedom of speech to make flag-burning criminal, for instance?
These are the questions Bork actually addresses in his arguments about the First Amendment, and they are the questions that the lawyers and judges he condemns also address. They are questions that engage a judge’s most fundamental political convictions. The answers Bork gives to these questions of political morality are for the most part different from their answers, because Bork’s convictions about the basis, and the importance, of protecting speech in a democracy are very different from theirs. But what is important is that the questions are the same, and that these questions are radically different from questions about “how the words used in the Constitution would have been understood at the time.”
Bork does not even believe that if it were somehow possible to find answers to contemporary constitutional controversies in the historical understanding of the Constitution’s language or of the minds of persons alive at the time of the ratification of the Constitution, modern judges should invariably be guided by this historical meaning. Judges who did so would have to ignore two centuries of intervening Supreme Court decisions, and Bork does not counsel anything that radical. He acknowledges that in constitutional cases, as in any other field of law, an important part of judging means accepting the constraints imposed by a proper understanding of past judicial judgments. He even seems to recognize that these past judicial judgments themselves demand interpretation, and that interpreting past judicial decisions also invokes the political convictions of the subsequent judges who accept their authority.
All of this makes for a deep inconsistency in Bork’s arguments about constitutional method. On the one hand, he repeatedly resorts to the naive rhetoric used to express the original understanding position, as though there were indeed nuggets of historical constitutional meaning which could be uncovered and which would in themselves, without further interpretation, provide answers to all our contemporary constitutional problems, and which, moreover, in a well-ordered legal system would be the exclusive basis of constitutional judgment. On the other hand, he makes concessions that starkly contradict each of these premises.
It is easy to see how Bork gets into such a tangle of contradictions. He wants not merely to disagree with certain past decisions of the Supreme Court, or to challenge the constitutional theories that have been advanced to support them. He also wants to brand those decisions and theories as illegitimate, the result of the seduction of the law by politics, by showing that in significant part they reflect the political convictions of the justices who decided them.
He can succeed only if he can offer a method for making constitutional decisions that is not similarly influenced—or, as he would have it, tainted—by political conviction. Only the primitive idea of the original understanding holds out the promise of a value-free constitutionalism of this sort, and Bork seizes on it for just that reason. But since the original understanding view, taken neat, is deeply implausible, Bork dilutes its sharp methodological claims with broad concessions. What’s left, unfortunately for Bork, is a view of constitutional adjudication that is neither consistent nor interesting. Once he has acknowledged that judges have close and controversial choices to make, and that the text and history they must interpret includes not just the Constitution but past decisions of the Supreme Court as well, then his charge against the judges and scholars who disagree with him loses its force, and his invocation of the original understanding becomes an empty slogan.
Hence Bork’s uneasy moves back and forth between primitive rhetoric and more plausible analysis. His continued use of the language of original understanding is not just shorthand or a matter of carelessness. He needs the sustained pretense of naive theory to brand those he disagrees with as scoundrels. But he is himself forced to abandon the central premises of that theory in order to avoid appearing foolishly unaware of the actual demands of constitutional adjudication.
The pivotal claim in Bork’s caustic dismissal of the Supreme Court’s decision in Griswold v. Connecticut illustrates his conceptual difficulty. “When the Constitution has not spoken,” he says, “the Court will be able to find no scale, other than its own value preferences, upon which to weigh the competing claims.” Bork could mean, by the claim that the Constitution “has not spoken” on privacy, that the Griswold result does not follow with simple and unarguable clarity from the text of the Constitution or from how it was understood when it was adopted. But that is true of virtually all constitutional decisions, as Bork, when he chooses to write in a more sophisticated mode, several times recognizes.
Or he could mean that the right of privacy has no explicit textual source in the Constitution. But some of the most basic and well-established principles of American constitutional jurisprudence are not set out explicitly in the Constitution’s text, but, like the right of privacy, are the products of interpretation and judgment. What is perhaps the most important principle of all—that federal courts, including the Supreme Court, have the authority and responsibility to enforce the Constitution—is not named or directly implied in any particular constitutional provision. That principle, which almost no one now challenges, was declared by John Marshall in Marbury v. Madison to be valid because it flowed from the best understanding of the Constitution as a whole.
The Constitution, moreover, nowhere announces that the constraints of the Bill of Rights, including the First Amendment’s protection of free speech, apply to the states. The Bill of Rights itself is explicitly binding only on the national government; it has been extended to the states by judicial interpretation of the Fourteenth Amendment, though nothing in that amendment explicitly directs such an extension.
The “right to travel” (which is really the right to migrate from state to state and resettle) also has no express textual support in the Constitution, and the Justices of the Supreme Court have disagreed about which provisions best support that right. The right to travel freely within the US has nevertheless been recognized for almost our entire constitutional history; and in recent years the Court has acknowledged that it has no clear textual niche but is implicit in the history and structure of the Constitution as a whole.
None of these staples of constitutional doctrine was drawn from some explicit and unmistakable command of the text, yet none can be thought the product of the whimsy or the personal ideology of maverick judges. That these principles have had sustained support in constitutional law and an esteemed place in our general understanding of the Constitution is evidence of their interpretive power: they are features of the most attractive, coherent account that we can give of the Constitution as a whole and of the history of judicial decisions under it. Bork does not quarrel with any of them.
He could of course take issue with the Griswold majority (and with most contemporary lawyers, who agree with the decision) on the ground that the Constitution, as he interprets it in the light of his own convictions, does not support a right of privacy at all. But he cannot plausibly claim that those who disagree with him because their political convictions are different from his have succumbed to prejudices of politics while he has taken the high ground of the value-free pursuit of the original understanding. No doubt each of the justices in the Griswold case saw our constitutional tradition in the perspective of his own political convictions. But according to Bork’s own example, in his sophisticated moments, and at times by his own admission, that is an inevitable part of the process of constitutional justification.
At times, Bork seems aware of just how badly he himself has undermined the idea of the original understanding. He then tries to preserve some part of that primitive and indefensible view by restating it as follows. Judges, he says, cannot find in the original understanding all the materials they need for a concrete decision, but they must take as their starting point or “major premise” a principle that can be discovered in the intentions of those who ratified the Constitution. Like his attack on the Griswold decision, this, too, is a claim that embodies rather than resolves the inconsistancy of his analysis.
Consider how little the idea that judges must find a “major premise” in the original understanding of the Constitution tells us about the correct resolution of another modern controversy: the constitutionality of affirmative action, that is, of laws that seek to redress present or past injustices against racial minorities by explicitly favoring minority interests. Virtually all constitutional lawyers now agree that the equal protection clause of the Fourteenth Amendment was intended to, and does, prohibit state and local governments from discriminating against racial minorities. But what advice does the “major premise” thesis give judges who must decide the very different question, whether the clause strikes down laws favoring such minorities?
That depends on how precise the “major premise” is supposed to be. Suppose Bork means that judges must begin with a proposition that they find in the original understanding which is so detailed or so decisive in its sweep as itself to decide all affirmative action cases. In that case Bork’s apparent qualification to the original understanding thesis is not a qualification at all, but only a restatement of the crude, untenable version of that thesis.
On the other hand, if the major premise that judges are obliged to discover in the original understanding may be as general as “equal justice must prevail among citizens without regard to their race,” or, more generally still, “equal justice must prevail among citizens,” then judges will have to interpret and apply that mandate through the exercise of their own, potentially controversial, convictions and reasoning, and with some substantial obligation to take account of precedent.
Few if any judges or constitutional theorists—including those whom Bork criticizes most harshly—would dissent from this view of how judges should work. The Supreme Court has made many controversial judgments, and every constitutional lawyer or spectator thinks that at least some of them were wrong. But we would be hard pressed to identify a decision by the Supreme Court in which it is clear that the Justices in the majority were consciously rejecting an obligation to begin their decision in a general, though perhaps very abstract, principle of justice that they thought the framers intended to include in the Constitution. Disagreements between Justices in particular cases, while often sharp and sometimes bitter, are not disagreements over whether judges should interpret the Constitution in this way, but rather over what the abstract constitutional principles so identified actually require in concrete cases. If fidelity to the original understanding of the Constitution means nothing more than this, Bork has no one to rail against.
Bork makes a different effort to qualify the naive view of the original understanding without wholly undermining it. He says that if we cannot tell, from historical investigation, whether those who adopted and ratified a particular constitutional provision intended it to strike down a particular kind of law, judges should presume that the law is constitutional. This is a presumption that limits the range of constitutional prohibitions, and Bork offers this example of that presumption at work:
Let us assume that we find that the ratifiers intended to guarantee that blacks should be treated by law no worse than whites, but that it is unclear whether whites were intended to be protected from discrimination in favor of blacks. On such evidence, the judge should protect only blacks from discrimination…. The reason is that the next higher level of generality above black equality, which is racial equality, is not shown to be a constitutional principle, and therefore there is nothing to be set against a current legislative majority’s decision to favor blacks.
The consequences of this presumption would be devastating. Even Bork acknowledges that the intentions of the framers or ratifiers are almost never clear. If the constitutional provisions that grant individual rights were reduced to the kernel of meaning about which there could be no serious dispute, very little of our constitutional jurisprudence would survive. This seems a genuinely bizarre way of paying respect to what the founders of the Constitution and those who ratified its amendments wanted: if we adopt a rule that restricts the Constitution to what we can be absolutely certain they intended, we can protect only a tiny part of what, on anyone’s account of the original understanding, they actually did intend to be protected. With friends like Bork the Constitution needs no enemies.
It soon appears, however, that Bork applies this presumption selectively, and that he adopts a procedure considerably more generous to individual rights when it suits his own politics to do so. Indeed, in the very case he contemplates in the passage just quoted—the question of whether whites have a constitutional right not to be put at a disadvantage by affirmative action—he brazenly violates the methodology he says he would follow.
There is no convincing evidence that the ratifiers of the Fourteenth Amendment’s equal protection clause intended it to protect whites from affirmative action programs that try to overcome the effects of past segregation. Indeed, it is extremely doubtful that many of them would even have contemplated the possibility of such programs. So the claim that affirmative action violates the equal protection clause plainly contradicts Bork’s presumption: it relies on an interpretive judgment, not the explicit text or an unmistakable command of history. The reader has good reason to be surprised, therefore, when he encounters Bork’s treatment of the Court’s recent decision in City of Richmond v.J.A. Croson Co.
The city of Richmond, Virginia, had adopted legislation that required prime building contractors with the city to subcontract 30 percent of the contract value to minority subcontractors. The Court held that, in the absence of evidence that the Richmond scheme was necessary to remedy prior identified local discrimination in the building trades, the requirement violated the equal protection clause.
The decision in the Croson case is one of the few decisions Bork discusses of which he thoroughly approves. He sees the case as part of a “counter-current” to the “politics of ultraliberalism,” an “overdue” adjustment “in civil rights doctrine.” His only criticism is that Justice O’Connor’s opinion does not go far enough: he would insist that even Congress could not adopt a program like Richmond’s to remedy general patterns of industry discrimination. He never mentions, in this discussion, the austere presumption he earlier announced, that the Constitution should be interpreted to permit legislation unless there is clear evidence that the framers meant to prohibit it; this of course would have the effect of declaring that state and national affirmative action laws are entirely consistent with the Constitution. Like his claim that the original understanding must be the sole criterion for assessing constitutional issues, Bork’s presumption against the reach of the Constitution is merely a matter of rhetorical or strategic advantage, which serves to attack the legitimacy of the views of those with whom he disagrees but not to restrain his own analysis when the political stakes are high.
Those whom Bork criticizes in this book have much to complain about: he brands them as judicial pirates and academic subversives for engaging—often honestly and reflectively—in a process of constitutional judgment which is surely no more political nor less faithful to the Constitution than Bork’s own analysis.
What does Bork have to complain about? The two books by others reviewed here along with his own discuss the fairness of Bork’s treatment in the political battle over his confirmation. They disagree in their conclusions—Michael Pertschuck and Wendy Schaetzel for the most part endorse the campaign waged by the anti-Bork forces while Ethan Bronner is more critical of it—but all three books document considerable unfairness to Bork. The most telling complaint is that Bork’s view of a particular legal arrangement or practice as not violating the Constitution, or not otherwise illegal, was often presented to the public by his opponents as though he actually approved of the arrangement or practice.
Several newspaper advertisements, for example, claimed that as a Court of Appeals judge Bork had endorsed the behavior of American Cyanamid, which had told the women employees in one of its departments that they must choose between being voluntarily sterilized or being transferred to less well-paying jobs or even fired outright. The advertisements were meant to suggest not only that Bork was coldly indifferent to the women, five of whom in fact chose sterilization, but that he favored coerced sterilization. The case in question, Oil, Chemical & Atomic Workers International Union v. American Cyanimid Company, in fact posed for Bork and the other two judges who heard the case (one of whom was Antonin Scalia, now a Supreme Court Justice) a technical question of statutory interpretation that many judges, even those who were deeply sympathetic to the women involved, would have decided as Bork and his colleagues did. The American Cyanamid decision, standing alone, was certainly not evidence that Bork lacked compassion for the women in question or for women in general.
Distortions of this sort are reprehensible. It is no excuse that Bork’s own use of history and legal theory would naturally engender a broad skepticism among his critics, and encourage a tendency to concentrate on his final positions and ignore the analytical arguments by which he reaches those conclusions. But while Bork’s decision in the American Cyanamid case is not a sound basis for concluding that he is insensitive to the interests of women, some of his views about the status of women under the equal protection clause do suggest such insensitivity. The Supreme Court has used the equal protection clause, and the due process clause of the Fifth Amendment, to scrutinize explicit distinctions in the way laws treat men and women, and it has found many such distinctions unconstitutional. Bork believes that these findings are a misuse of the Constitution and that distinctions in the law that are based on gender should be subject only to the very weak test that they must be rationally related to some legitimate state goal, a test that virtually all laws survive.
Bork first defends this claim by urging that the framers of the Fourteenth Amendment meant to subject only racial discriminations to a special test, and he insists that we should respect that intent. But he then concedes that the equal protection clause is general in its language, and that the Supreme Court has consistently understood the clause’s mandate as applying not only to race but to other matters as well. He offers a different kind of argument to meet the latter point, an argument based not on original intention, but on practicality. He says that while a flat rule against racial distinctions is possible, a comparable rule against gender distinctions is not—after all we have public toilets to worry about. That is a poor reply: the need to make complex distinctions has not discouraged Bork or the Court from working out a constitutional jurisprudence of free speech in which special limitations may apply to incitement to violence and to libel, for example. Of course distinctions are necessary in the case of gender as well, but that is no reason to abandon the effort to correct the broad social injustices of which women as a class are the victims.
Bork faces a real dilemma here. Once he recognizes that the equal protection clause can no longer be limited to questions of race, he has abandoned his argument from original intent. He now needs to meet head-on the question whether a Court charged with enforcing the equal protection clause must treat gender-based laws with sharp suspicion. Of course people with different political and social convictions will answer that question differently. But it is nevertheless the question that must be answered. Bork merely announces that the right answer is to deny the validity of any strict test for gender-based classifications. He insists that his own political convictions played no part in reaching that answer, without explaining how he could have reached it in any other way.
Ethan Bronner concludes his book with the suggestion that the campaign against Bork was unfair, not so much to him personally, as to the position in favor of a passive and restrained Supreme Court which Bork was named to defend. Bronner believes that a more successful defender of judicial restraint might have raised the national consciousness about an important issue. It may be, he argues, that in making a number of important political controversies a matter of constitutional law rather than ordinary politics, the Supreme Court has deprived the American electorate of the responsibility and opportunity to confront hard questions of social policy and political morality. This, Bronner thinks, may well account for the general apathy that has overtaken American politics, which was reflected in the historically low turnout of 50 percent of the electorate in the 1988 presidential election.
Pertschuk and Schaetzel’s study of the Bork affair might at first glance seem to confirm Bronner’s thesis. One of the remarkable features of the campaign against Bork, they show, was the size and shape of the coalition that committed itself to his defeat. The organizing nucleus of the movement to “Block Bork,” was the Leadership Conference on Civil Rights and the Alliance for Justice, a coalition that had already led campaigns against the elevation of William Rehnquist to Chief Justice and the appointment of Daniel Manion to the Court of Appeals for the Seventh Circuit. The movement came to include groups as diverse as the ACLU, the Epilepsy Foundation of America, 9 to 5 (the National Association of Working Women), the Oil, Chemical and Atomic Workers, the Seafarers International Union, and the YWCA of the USA. The remarkable breadth of the coalition that chose to campaign against the nomination may seem to support the claim that too many issues we would expect to be aired and resolved in the legislatures or the marketplace have instead been made the province of a judiciary armed with the Constitution.
But this assumes, first, that matters once confided to the authority of the judicial branch cease to occupy the attention and energy of citizens’ groups and elected officials. Nothing in our national experience confirms this view. Far from removing issues of racial justice from the public agenda, the Supreme Court’s decision in Brown v. Board of Education did much to intensify public concern over those issues. The Brown decision and later civil rights decisions helped to stimulate the civil rights movement in the South; and the efforts by civil rights groups to register voters in the South in turn helped to produce the Voting Rights Act of 1965, which remade the face of southern politics.
Even a decision like Roe v. Wade, which seemed decisively to restrict the authority of the states to legislate against abortion, has stirred rather than stifled moral debate. Without the Court’s decision in Roe v. Wade, perhaps the preceding situation, in which most states severely restricted abortion, would have survived for a time; perhaps we would have drifted slowly toward a relaxation of legal restraints on abortion; perhaps, like the states of Western Europe, we would have moved quickly but more selectively toward the liberalization of abortion, with great freedom of choice and public funding available in the early months of a woman’s pregnancy but with substantial constraints in the later months. Perhaps we would have reached some different compromise; or perhaps we would have arrived at something very much like the outcome in Roe. None of the possible outcomes gives us reason to suppose that the quality or intensity of public debate would have improved. Roe v. Wade, like many other Supreme Court decisions, provoked rather than suppressed attention to the sharp moral issues lurking behind a public-policy question, issues which may or may not have been seriously and energetically debated without the goad of judicial pronouncement and intervention.
Bronner’s claim also assumes that the themes of constitutional law substantially overlap the matters that could or should excite our political interest. In fact, controversy over the Constitution touches very little of our political life. Most of the really urgent questions of social responsibility and policy remain open to political resolution. In no serious way does contemporary constitutional doctrine limit the choices available to us collectively as we sort out the virtues and liabilities of administrative regulation of various commercial markets, as we address the problems of a crushing national deficit and widespread poverty, as we try to reconcile our habitual patterns of life with painful ecological realities, or as we adjust foreign policy to a new world. In fact, by protecting free expression, the Supreme Court has done much more in the last fifty years to invigorate politics than to deaden it. It is true that American politics has often been so trivialized, as it was during the 1988 presidential campaign, that genuine and important issues were neglected, and that public interest in them waned. But the Supreme Court is hardly the culprit.
Bronner does, however, bring out the central point of Bork’s jurisprudential position. Underlying Bork’s arguments about original intention is a thesis of political morality: that in a democracy the ordinary political process—decision by an elected legislature and elected executive officials—is the only legitimate means for making fundamental moral choices. When judges exercise their own political judgment under cover of interpreting the Constitution, according to this argument, democracy is thwarted.
For Bork, apparently, democracy requires nothing more than that elected officials have untrammeled power to make political choices. But there are other, more demanding views of what democracy means. Most people would think, for example, that a genuine democracy requires a fair distribution of the vote and at least rough equality of voting power. Bork apparently does not: he is harshly critical of the Supreme Court’s reapportionment decisions, which established that states have a constitutional duty to arrange voting districts so that each citizen’s vote has roughly the same impact, and he even faults the Court’s decision in Harper v. Virginia State Board of Elections, which held poll taxes to be unconstitutional.
For many, democracy is more demanding still: it means a system of government where no group is subordinated to others, where free expression thrives, where liberties requisite to personal development are protected, where no group is systematically excluded from economic opportunity, and where persons’ circumstances encourage and enable them to participate in politics. When Bork appeals to “democracy” to justify his view that elected officials should be as free as possible to do whatever they think a majority wants, therefore, he is appealing only to one particularly narrow conception of democracy, and his arguments depend on rejecting other, more generous conceptions.
Bork’s narrow view of democracy, in fact, fits the Constitution very badly. The Constitution contains a variety of explicit individual rights, and these rights, whether installed in the Constitution a century ago, or in many instances, two centuries ago, override the contrary will of contemporary political majorities. The framers, in other words, rejected the idea that true democracy demands that elected officials have the untrammeled power to do whatever the majority of their constituents want, and no one who holds that crude view of democracy can appeal to the “original understanding” for support.
Bork’s enthusiasm for his spare account of democracy arises, no doubt, from his own political convictions, from his deep sense that unlimited majority power is the most attractive form of government. But he never defends this conception of democracy or even recognizes that it requires a defense. He might have illuminated constitutional theory and practice by recognizing his own dependence on that conception, and offering a conservative judicial philosophy that tried to explain why the narrow conception of democracy should be accepted as the best account of our constitutional structure. Instead he maintains the pretense that constitutional law is a simple matter of common sense, and that his own views are innocent of politics, drawn from the open book of the original understanding. This is the deepest failure of The Tempting of America. I finished it convinced that the intellectual personality revealed in it would have served the Supreme Court poorly.
In his three days of testimony before the Senate Judiciary Committee, David Souter revealed enough about his ideas on the Constitution and the role of judges to justify comparison with Bork. In place of the implausible dogma of the original understanding, Judge Souter offered glimpses of a theory of constitutional interpretation that was much less wooden and much more demanding of discriminating judgment. He spoke of the “massive generalities and magnificent generalities” of the Constitution, and of the judge’s obligation to “infuse into the Constitution a sense of enduring value” and to “search for an appropriate meaning to the scope of liberty protections.” In explaining his support for the Supreme Court’s decision in Brown v. Board of Education, he spoke of the need to identify the broad principles that animated the Fourteenth Amendment as opposed to specific consequences that people might have had in mind when the amendment was ratified. He observed that the Constitution itself insisted on the existence of “unenumerated rights,” and he associated himself with the search for a “bedrock concept of liberty, which is explained and indicated and illustrated by the history and traditions of the American people in dealing with the subject of liberty.”
In the place of Bork’s grudging view of the Court’s role, Souter said that courts have a “responsibility for making a just society,” and that if other branches of government have left constitutional concerns unaddressed it becomes the obligation of the courts to address them. In contrast to Bork, who in a recent op-ed piece in The New York Times discreetly cheered Justice Brennan’s departure from the Court, Souter offered this encomium to the man he will succeed:
Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have. No one following Justice Brennan, absolutely no one, could possibly say a word to put himself in the league with Justice Brennan. All you can do is say what perhaps once Justice Brennan said, “I will do the best I can.”
There is a great deal we do not know about David Souter, of course. He was appointed by a president who said he intended his choice to support the conservative drift of the Supreme Court, and he will probably do so to some extent. (He stated without reservation that the death penalty was constitutional; but he had little to say about the status of women’s rights to privacy, and nothing at all about the rights to privacy of people who are not married.) By comparison with Bork, however, he seems to bring to the Court qualities of honesty and open-mindedness, and a sense of responsibility to the deep principles of the Constitution.