A Country I Do Not Recognize

by Robert H. Bork

  In each of these important, if not revolutionary, decisions the Court, without exception, held unconstitutional a policy choice made in the ordinary political process, reflecting traditional values, only to substitute an innovative policy further to the political left. It would be difficult to find a decision of comparable importance during the same period that had the opposite effect. In the guise of enforcing the Constitution, the Court faithfully enacted the political program of the liberal cultural elite, working a thoroughgoing revolution in American law and life.

  The Myth of a Conservative Supreme Court

  But, liberal academics and media are constantly telling us, while it may be true that the Court’s rulings of unconstitutionality have for some decades enacted the Left’s political agenda—that now is history. The role of the Court has been drastically changed, if not reversed, the public is led to believe, beginning in 1986 under the “Rehnquist Court,” which is at least as activist in the service of conservative causes as its two immediate predecessors, the Warren (1959–1969) and Burger (1969–1986) Courts, were in the service of liberal causes.70 This claim has been so confidently and frequently asserted as to become, at least in the liberal media, conventional wisdom, despite the fact that the Court’s rulings of unconstitutionality continue overwhelmingly to favor liberal causes.

  The public’s view of the Court necessarily comes mainly from the media, and the media’s view mainly from liberal academics. For a Court to be considered conservative in liberal academia, it is not necessary that it give conservatives positive victories similar to those it gives liberals—by holding, for example, that abortion is not only not constitutionally protected, overruling Roe v. Wade, but is constitutionally prohibited. Nor is it even necessary that the Court rescind some earlier liberal victories by, for example, overruling Miranda or the prayer decisions. It is quite enough that the liberal victories come less quickly or surely, and it is unacceptable, an abuse of judicial power, that there should be an occasional positive conservative victory. A half-century of consistent liberal victories has made them seem the normal and appropriate result of the Court’s rulings of unconstitutionality, virtually the point of constitutional law.

  Because conservatives, by definition, seek to preserve rather than uproot traditional practices and values, they are much less in need than liberals of constitutional victories, and they have, in any event, been granted very few by the Rehnquist Court. The Burger Court, to the disappointment of opponents of the Warren Court revolution and to the surprise of nearly everyone, was, as the title of a book on the subject put it, “the counter-revolution that wasn’t.”71 Rather than overruling the major victories that the Warren Court gave liberals, the Burger Court gave them more, and sometimes even more radical, victories of its own. It was the Burger, not the Warren, Court that, for example, first prohibited sex discrimination, created a constitutional right to an abortion, and ordered busing for school racial balance.72 The Rehnquist Court has failed to overturn the major liberal victories of either the Warren or the Burger Court.73 Instead, it has accepted them as legitimate additions to the Constitution, available as springboards for still further liberal advances.

  The Rehnquist Court not only failed to overrule Roe v. Wade, as it was expected to do, but extended it to protect even so-called partial-birth abortions.74 It not only failed to overrule the prayer in the schools decisions but extended them to prohibit even a nonsectarian evocation of the deity at a middle-school graduation ceremony.75 Far from overruling or even relaxing the Burger Court’s prohibition of sex discrimination, the Rehnquist Court extended it to even an all-male military school.76 The Rehnquist Court failed to overrule Miranda and its exclusionary rule and instead held unconstitutional a congressional attempt to limit it.77 Rather than overruling Mapp v. Ohio and its exclusionary rule—excluding evidence obtained by a search the Court deems impermissible—the Court continues to extend it by, for example, excluding evidence obtained by pointing a heat-sensing device at the exterior of a building or by having a drug-sniffing dog walk around an automobile.78

  The Rehnquist Court held unconstitutional an amendment to the Colorado Constitution adopted by referendum by the people of Colorado to prevent the grant of special rights to homosexuals.79 It invalidated federal attempts to limit child pornography on the Internet and continued the Court’s long-term drive toward the abolition of capital punishment.80 It invalidated state laws limiting the number of terms their congressional representatives are eligible to serve.81 Just last term, it invalidated Texas’s prohibition of homosexual sodomy and upheld the use of race preferences in granting admission to selective institutions of higher education.82 If this is a conservative Court, what more could a liberal Court do?

  The explanation for the continuing string of important liberal victories from a supposedly conservative Court is that it is misleading to label it, according to convention, as the “Rehnquist Court,” as if the chief justice were the dominant figure. Although he can do surprisingly liberal things, such as lead the Court in invalidating Congress’s attempt to limit Miranda,83 he is, by today’s standard, generally conservative, but he has only one vote. The reality is that the Court has four highly reliable liberal activists, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer (in order of seniority, but also, roughly, of their liberal activism), and only three, not quite as reliable, conservatives, the chief justice and Justices Antonin Scalia and Clarence Thomas. To prevail, the conservatives need the votes of both the less predictable Justices Sandra Day O’Connor and Anthony Kennedy, while the liberals need only one, and on basic social policy issues such as in the sodomy decision, one or both is usually available.

  The rulings of unconstitutionality favoring conservatives by the Rehnquist Court are few, mostly short lived, and likely to prove relatively unimportant. The principal one is surely the Court’s decision in Bush v. Gore, ending the vote count in the Florida election and settling the 2000 presidential election.84 That was undoubtedly an activist decision but one dealing with a unique event and arguably justifiable as counteracting the judicial activism of the Florida Supreme Court. The greatest fear of liberals about the Rehnquist Court was that it would invalidate, as its precedents seemed to require, the use of race preferences in making admission decisions by colleges and universities. With the Court’s 2003 decision in Grutter v. Bollinger, that fear has been removed.85

  Over the adamant protest of the four consistent liberals, the Rehnquist Court attempted to reinvigorate the Fifth Amendment’s prohibition (“incorporated” in the Fourteenth Amendment) against the “taking” of property without just compensation. In a series of decisions, the Court upheld “regulatory taking” claims, that is, claims for loss of property values resulting from land-use regulations, rather than from the government taking possession of or claiming title to the property.86 This development has now largely been brought to a halt, if not actually reversed, by the Court’s most recent decision on the issue.87 Justices O’Connor and Kennedy both defected to the side of the four consistent liberals to deny a claim that seemed quite solid under recent prior decisions.

  The most discussed and berated example of alleged conservative activism by the Rehnquist Court is some of its decisions on the federalism issue. The conservatives, usually joined on this issue by Justices O’Connor and Kennedy, with the liberals always heatedly dissenting, have clearly undertaken to protect a degree of state autonomy from national power. The Court held, in several cases, that Congress may not authorize certain suits against the states without their consent;88 in two cases, that Congress may not require the states to cooperate in certain ways in the enforcement of federal law;89 and most strikingly, in two cases, that Congress may not regulate certain noncommercial activities on the basis of the commerce clause.90

  The Court’s most recent decision on the issue of suits against the states indicates, like the latest case on the regulatory taking issue, that the movement has been brought to a halt or even cut
back.91 On the compulsory cooperation issue, Congress can usually prevail by simply placing conditions on federal monetary grants.92 The Court’s two decisions invalidating purported exercises of the commerce power are likely to prove more a matter of form than substance. The Court has gone out of its way to emphasize that Congress may achieve noncommercial (“police power”) objectives through the commerce power, providing it does so by placing restrictions on the interstate movement of people or goods.93 In sum, with few deviations, not likely to prove important, and almost no steps backward, the Rehnquist Court, like the Burger Court, continues on the path of liberal activism set by the Warren Court.

  Judicial Review: The Trump Card of the Cultural Elite

  In the cultural war being fought out in America, the mass of the American people have the numbers, but the cultural elite has judicial review. The nightmare of the elite is that decision making on basic issues of social policy should fall into the hands of the American people. The American people favor capital punishment, restrictions on abortion, prayer in the schools, suppression of pornography, strict enforcement of criminal law, neighborhood schools, and so on, all anathema to the cultural elite. Could anyone really want to live, they wonder, in a society with such policies? Policymaking by a committee of life-tenured lawyers might not be the cultural elite’s ideal alternative to popular government—moral philosophers or sociologists, for example, might be better—but it is all that is available. Nothing is more important to them, therefore, than that the power of the Court to invalidate policy choices made in the ordinary political process be defended and preserved.

  The dilemma of defenders of judicial review is that it is hardly possible to defend the Court’s rulings of unconstitutionality as interpretations of the actual written Constitution in any ordinary sense and even less possible to openly advocate, as an improvement on democratic federalism, policymaking for the nation as a whole by as few as five electorally unaccountable officials. What they attempt, therefore, is to show that though the Court’s rulings of unconstitutionality may not exactly be derived from the words of the Constitution, neither are they simply the result of the justices’ personal policy preferences; they are the result, instead, of the justices’ discovery and disinterested application of universal principles of justice or good government that should prevail whether the people agree with the Court’s supposed application of them or not. The ordinarily most secular of scholars become for this purpose advocates of some form of “natural law.”

  All attempts to make this showing are based on two assertions, both mistaken. The first is that there are authoritative, preexisting, and objectively discernible principles—apart from the Constitution or any enacted law—that provide, although perhaps only to the exceptionally skilled and only after Herculean effort, objectively “correct” resolutions of difficult social policy issues.94 The second is that Supreme Court justices, perhaps aided by the work of constitutional scholars, can be trusted, more than other government officials can, to possess the skill needed to discover these principles and the integrity to apply them in a disinterested manner.

  These theories are similar to Plato’s argument for rule by philosopher kings, persons of exceptional wisdom, integrity, and erudition, but not even Plato, presumably, would favor rule by lawyer kings. As one would go to an expert cabinetmaker to have a good cabinet made, the theory is, one should go to social policy experts to have good social policies made. The theory of democracy, however, repeatedly confirmed by experience, is that there are no superior beings—there’s nobody here but us—to whom ordinary people can safely delegate final decision-making power about how they should live. “For myself it would be most irksome,” the great judge Learned Hand objected to the Supreme Court activism of his day, “to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.”95 It is even more irksome to be ruled by lawyer guardians who must pretend to reach their policy decisions by studying—as witch doctors do the entrails of birds—the Constitution.

  A problem of social choice is a problem not because we have difficulty discovering the resolving principle but because we have many principles, and they, like the interests they represent, inevitably come into conflict. There is no way to resolve the problem except by evaluating the conflicting interests and making some sort of compromise or trade-off, usually sacrificing each interest to some extent to the other. For example, parades may be a valuable form of political expression, but they unavoidably impede the flow of traffic. As an economist would put it, these conflicting interests cannot simultaneously be maximized. The conflict cannot be resolved purely by logic or empirical investigation but only by a policy choice evaluating the relative importance of unimpeded traffic flow and of this form of political expression at the particular time and place. The essence of democracy is that these judgments are to be made by the people affected or by their elected representatives. Leaving the decision to the Supreme Court instead does not produce a “better” decision but only one almost surely more in accord with elite policy preferences. In the stated example, the speech interest will be evaluated very highly—speaking is what the cultural elite do—and the inconveniences and losses involved—which members of the elite are often in a position to avoid—very much less so.

  The second assertion, that Supreme Court justices are people of exceptional skill and integrity as policy analysts, with no personal interest in the resolution of policy issues, is, if anything, even more clearly mistaken. The justices are, for two reasons, the least likely public officials to make informed, disinterested decisions on public policy issues. First, their only professional qualification is that they must be lawyers, professionally skilled in the manipulation of language to achieve a predetermined result. Nothing in the study or practice of law is calculated to inculcate exceptional candor, ethical refinement, or habits of intellectual integrity. The study or practice of law is more likely to inculcate the ability to blur the distinction between truth and falsehood and to accommodate the mind to the untroubled assertion of fiction.

  It is not likely that many Supreme Court justices strongly committed to a result have felt themselves unable to reach it because they lacked the lawyerly linguistic or rhetorical skills necessary to overcome some impediment of law, fact, or logic.96 Consider, for example, the opinions of Justices Brennan, Marshall, and Blackmun on the unconstitutionality of capital punishment,97 the opinion of Justice Ginsburg on the unconstitutionality of an all-male military school,98 the opinion of Justice O’Connor upholding racial discrimination by a state university in the face of Brown and of Title VI of the 1964 Civil Rights Act’s explicit prohibition,99 or for that matter, the Court’s latest opinion justifying a ruling of unconstitutionality.

  Second, Supreme Court justices are the public officials least to be trusted to make policy decisions on any basis other than personal preference, for the further and more fundamental reason that they are the public officials least accountable to the public or otherwise subject to external control. It is not that they are morally inferior beings but only that they are human beings, no more exempt than others from the corrupting effect of uncontrolled power. Power corrupts less by making men (and women) venal than by distorting their judgment. It is apparently bad for the human soul to be always obeyed and freed from contradiction. The result seems inevitably to be an exaggerated view of one’s knowledge, wisdom, and benevolence and a narrow view as to the possible possession of those qualities by others. One cannot study the Court’s opinions justifying rulings of unconstitutionality without being struck by the authors’ extraordinary confidence in their own wisdom and goodness, as well as by their distrust of their fellow citizens and their consequent lack of compunction in imposing their views on those who disagree.

  The justices clearly operate on the assumption, common to wielders of uncontrolled power, that their undoubted good intentions grant them exemption from the obligations of honesty and good faith applicable to other public officials.
This is nowhere more clear than in their decisions on race, the area that is the basis of the modern Court’s power and prestige. In the 1964 Civil Rights Act, Congress in effect ratified what it understood to be Brown’s prohibition of all official racial discrimination, made it effective as to the assignment of students to schools (Title IV), and expanded it to apply to all institutions that receive federal funds (Title VI) and even to private employers (Title VII). The history of race discrimination law since the Act is a hardly believable (at least for nonlawyers) history of the Court standing each of these titles on its head, converting them—exactly as Southern opponents of the Act feared and as proponents insisted could never happen—from prohibitions of race discrimination to permission for, or even requirements of, race discrimination.

  The end of compulsory racial segregation did not mean, it soon appeared, the end of all racial separation; it was time, therefore, the Court concluded—riding a crest of moral fervor and urged on by the “civil rights” establishment that had grown up after Brown— to move on to compulsory integration by law. The law of race discrimination with which we struggle today derives not from Brown’s prohibition of segregation, but from the Court’s far more ambitious and questionable 1968 decision in Green v. County School Board to impose, without admitting it, a requirement of integration.100 The South had no sooner finally been made to comply with Brown’s prohibition of racial discrimination, because of the 1964 Act, than it was required to begin racially discriminating again, now to increase school racial integration or balance. For several reasons, the Court could not make this move openly. For one thing, it would be expected to explain the benefits of compulsory integration, something it has never attempted to do. More important, the requirement would have applied at once not just to the South but to the racial separation that exists in the school systems of all our major cities, which would have caused massive national resistance to the decision. The Court imposed it, instead, in the North and West one city or area at a time, which operated to avoid unified opposition. Perhaps most important, the Court would have had to overrule or at least qualify what everyone, including the Congress, understood to be the nondiscrimination principle of Brown—the last thing the Court wanted to do.