If President Reagan is reelected and serves four more years he is likely to make several appointments to the Supreme Court beyond the one he has already made. (Five of the present justices are aged seventy-five or over.) His justices would then dominate the Court for a generation, and through their decisions for longer than that. Reagan’s recent appointments of academic lawyers to the circuit courts of appeal—those just below the Supreme Court in the federal system—provide an important clue to the kind of choice he is likely to make, given the chance, for the Supreme Court itself.
He appointed Professor Robert Bork (who, as Nixon’s solicitor general, fired Archibald Cox as the Watergate chief prosecutor after Bork’s superiors resigned rather than do so) to the District of Columbia circuit court.1 Bork was well known while at the Yale Law School for his extremely conservative views on constitutional law. He is fond of saying that judges should enforce the law they find, not make up new laws to suit their own political convictions. Some of the most conservative of the present justices, notably William Rehnquist, say the same thing, but as the political power of moral and religious fundamentalism has increased in the country they have grown impatient with the traditional legal methods that protect individuals from majority will.
Two justices generally counted as moderates, John Paul Stevens, who was appointed by Ford, and Harry Blackmun, appointed by Nixon, have complained publicly against this tendency—Blackmun said that the Court was moving to the right “by hook or by crook”—and their remarks have provoked several press and magazine articles about the Court and about Reagan’s potential appointees. Bork is mentioned prominently among these—a recent Time article put him at the top of the list—and he has just demonstrated a more blatant distaste for ordinary legal argument than any of the justices about whom Stevens and Blackmun complained.
Bork disregarded recent and important Supreme Court precedents in a widely reported decision denying that homosexuals have any constitutional right against discrimination.2 His methods and argument will trouble people who worry about the declared intention of Reagan’s supporters to enforce their own private sexual morality by law, and who might have hoped that the Constitution would protect the nation from that form of oppression.
James L. Dronenburg served nine years in the United States Navy as a linguist and cryptographer with top security clearance. He was discharged in accordance with a Navy “instruction” which states that any member of the Navy “who solicits, attempts or engages in homosexual acts shall normally be separated from the service. The presence of such a member in a military environment seriously impairs combat readiness, efficiency, security and morale.” The Supreme Court has never expressly declared that homosexuals have a constitutional right to engage in the sexual practices they believe are normal for them. Twenty-five states still have…
This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!
Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.