After the Tall Timber

by Renata Adler

  New York Times Book Review

  December 16, 1979

  THE EXTREME NOMINEE

  THE WORDS “strict constructionist,” “judicial restraint,” “judicial deference,” “original intent,” “laissez-faire,” and even “conservative” have acquired in recent years at least three entirely distinct sets of meanings. In one, which is traditional and legitimate, the words accurately characterize the views of almost all serious constitutional scholars, and of all honorable and competent federal judges—whose work is, after all, not merely bound but defined by a solemn oath to uphold and apply the Constitution. In another, the words are mere code or buzzwords, used almost mindlessly and without meaning but with highly polemical intent; that is, to characterize the views one holds or wishes to applaud, and to disparage all opposing views with yet another, accusatory buzzword: “judicial activist.” Finally, the same words have been appropriated by holders of views so extreme, so coercive, so intrusive, and so radically at odds with tradition, with legal precedent, and with the whole text, history, structure, and meaning of the Constitution that they serve actively to conceal rather than to express positions, and have come to mean their precise and Orwellian opposites. In modern political history, this sort of transformation is not at all unusual. The most extreme agendas and regimes often adopt the terms of legitimacy and moderation.

  When President Reagan announced his nomination of Judge Robert Bork, of the Court of Appeals for the District of Columbia Circuit, to the seat on the Supreme Court that had been vacated by Justice Lewis Powell, news publications and spokesmen of every kind used that vocabulary of “strict constructionism,” “judicial restraint,” “judicial deference,” “original intent,” “laissez-faire,” and “conservative” as though it applied especially, or at all, to issues now posed for the Senate by that nomination. This was not surprising. President Reagan, Attorney General Edwin Meese, and Judge Bork himself had used that vocabulary to characterize the positions of the nominee. They were also trying to frame the terms of the debate for all three constituencies of those words—the legitimate, the polemical, and the ideologically extreme to a degree almost unprecedented in the history of the American federal courts. This left most people who had not actually read Judge Bork’s published articles and his opinions, both for the Court and in dissent, uncertain of and not overly worried by which set of meanings was intended.

  The Supreme Court for more than two decades has been in no sense and by no stretch of the imagination a radical or a liberal, or even a Democratic, court. On the day Justice Powell announced his resignation, the Court consisted of two Justices appointed by Democrats and seven appointed by Republicans. Justices Powell, William Rehnquist, and Harry Blackmun were appointed by Richard Nixon, Justices Sandra Day O’Connor and Antonin Scalia by Ronald Reagan. Justice John Paul Stevens was appointed by Gerald Ford, Justice William Brennan by Dwight Eisenhower.

  Justice Byron White, who was appointed by John Kennedy, has voted so consistently with Justice Rehnquist on what has been until now the right wing of the Court that he is no longer mentioned as a swing, or even a moderate, vote. Justice Thurgood Marshall, who was appointed by Lyndon Johnson, is the sole liberal Democratic appointee.

  It is this Court, and its continuity with its predecessors in almost every major decision upholding an individual constitutional right against the powers of the state, over a period of more than thirty years—going back to Brown v. Board of Education and beyond—that Judge Bork has repeatedly and consistently accused of deciding “lawlessly” and “without principle,” and of “creating rights,” and of imposing “value choices” and “preferences,” and of “lacking candor,” and of being “unprincipled,” and of producing a line of precedents “as improper” and “as intellectually empty” as Griswold v. Connecticut—a 1965 case in which the Court upheld a married couple’s right to use contraceptives, a decision to which Bork has returned obsessively and scornfully again and again, and one that he would clearly vote to overrule. He has accused the Court, including on major occasions Justices Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Potter Stewart, and Lewis Powell, with whom he prefers on other occasions to be identified, of being, unaccountably but consistently less principled, less competent intellectually, and less committed to the Constitution than Judge Bork believes himself to be.

  It goes without saying, although we all seem to feel obliged to say it, that a man who is nominated for the Supreme Court is entitled, like every other citizen, to his views, his judgment, his character, his history, his temperament, his intellectual quality, his personality and predilections. We know of Judge Bork, for instance, that he was a professor of law at Yale; that he was Solicitor General under President Nixon; and that he fired Special Prosecutor Archibald Cox, an act that was subsequently found by a federal court to be unlawful but that he now defends as having saved the “viability” of the Justice Department. We know that he has been a judge on a federal appellate court; that some of his friends regard him as witty; that he smokes, and likes martinis; that he did not pay certain taxes he had owed in New Haven since 1972, but paid them in July 1987, the day before the New Haven Register broke the story.

  We know that he had been about to resign from the bench and resume private practice (he had hired no new clerks) when President Reagan announced his nomination for the Court. All this seems to leave open the possibility that he is an open-minded man, experienced in legal scholarship and in public office, who might affect the “balance” but would in no way threaten either the continuity, collegiality, and integrity of the Court itself or the entire constitutional structure—the separation of powers, the system of checks and balances—with which the republic was founded, and which has endured and developed over the past two hundred years.

  From most of the reaction to his nomination so far, one might think: Well, some blacks oppose him, and some gays oppose him, and some women who oppose sex discrimination and believe in the right to abortion oppose him, and some woolly-headed liberals who believe in a right to privacy, or even believe that the First Amendment protects speech, oppose him, but those groups don’t always speak with one voice—or for the whole decent, centrist consensus of the country. On the other hand, the right wing supports him. And even some members of the establishment, including the academy and the press, support him, or at least are reconciled to him. And Roosevelt, after all, had his Court-packing scheme. So unless there is some “smoking gun,” the Senate might as well confirm him and get it over with. That’s the way the system works.

  But that’s not how the system works. The Court-packing plan, for instance, failed. It was defeated by the Senate. The vast majority of the House, the Senate, and the electorate, moreover, were of President Roosevelt’s party, and supported his social policy, at a time of genuine economic and political disaster. The present House and the Senate, many of whose members were elected as surely as and more recently than the current President, are not of his party. There is no crisis, except in extreme constituencies, and that is a crisis of ideology. But Judge Bork has made it so clear how he would decide nearly all major constitutional cases that have come before the Court, not just in the last thirty years but long before, that certainly for the first time in this century, and perhaps in the history of the republic, the Senate is being asked not to confirm a man but to establish on the Court a doctrine and a set of concrete decisions, most of which are reversals of established law and precedent. And Bork’s published work seems to set forth methods, certainties, and positions that, while they may be consistent with what Bork calls “representative democracy,” are so radically at odds with the Constitution as to amount to a rigid ideological system of his own.

  What Bork has been looking for, and believes he has found, is above all a theory, a simple axiom, or principle, or formula, that the Court can—in fact, must—apply in constitutional adjudication to all cases that come before it. This “theory,” developed at length in an article in the Indiana Law Jo
urnal in the fall of 1971, does not initially acknowledge the existence of “rights” at all but speaks instead of competing “gratifications,” “pleasures,” “preferences,” but repeatedly and above all “gratifications”: “Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between . . . gratifications,” and “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another.”

  The innumerable “lawless,” “utterly specious,” and “unprincipled” decisions—in fact, the perpetration of “limited” judicial “coups d’état”—that Bork thinks he discerns particularly, but by no means only, in the Warren Court seem to him, however, to “establish the necessity for theory.” To be a “principled” judge “means,” in fact, to “have and rigorously adhere to a valid and consistent theory.” And “the Court’s power is legitimate only if it has . . . a valid theory . . . of the respective spheres of majority and minority freedom.” Bork believes that, while he does “not offer a complete theory of constitutional interpretation,” he has found the best one by far. It is essentially this:

  There are two classes of constitutional “rights”—or, rather, claims to “gratification.” (He notes in passing, and with disdain, “rhetoric” to the effect that any “rights . . . inhere in humans.”) The first class of rights consists of those which are “specified”; namely, those which the “Framers” can be found literally and “actually to have intended,” and which are “capable of being translated into principled rules.” And the second class consists of “secondary,” or “derived,” rights, which “are located in the individual for the sake of a governmental process” (italics added). “They are given to the individual because his enjoyment of them will lead him to defend them in court and thereby preserve the governmental process.” In all other cases, the Court must simply administer the “majoritarian” “will,” or “preferences,” as these are expressed in law. This Judge Bork believes to be the doctrine of “strict constructionism,” “laissez-faire,” and “original intent.”

  There are many difficulties with this theory. In the first place, the constitutional command that the courts consider only specific “cases” or “controversies” has precluded them from proclaiming “theory”—either philosophical or “advisory” or in advance of any set of facts. That is how constitutional adjudication works. The law is discovered in the cases, and not the other way around. That is why Justice Powell, in a long interview in the Times after his resignation, took the trouble to say, “I never think of myself as having a judicial philosophy . . . . I try to be careful, to do justice to the particular case, rather than try to write principles that will be new, or original, or whatever.”

  Secondly, the notion that “rights . . . inhere in humans,” which Bork dismisses as some new, modish rhetorical development, was held so firmly by the founders of the republic that the second paragraph of the Declaration with which they proclaimed their independence began, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights.” The Constitution itself was drafted with three clear aims: to create a compact to form a republic, which would unite the separate states; to establish a structure by which that republic would be governed; and to protect precisely the individual rights of citizens against majoritarian intrusion and coercion by the state.

  That the Framers regarded these rights as inhering in the individual, and not as in any sense “derived,” either from any document or from any trivial, utilitarian “governmental process,” is clear, and not just from the Bill of Rights—which Judge Bork, in the same article, brushes aside as a “hastily drafted document upon which little thought was expended.” It was thoroughly thought out again, after the Civil War, when the Fourteenth Amendment extended the core of the Bill of Rights, along with due process and equal protection, to the citizens of all the states. But Bork treats this amendment rather dismissively as well, speaking of the “value choice (or, perhaps more accurately, the value impulse) of the Fourteenth Amendment.” He writes of the “men who put the amendment in the Constitution” that “many or most of them had not even thought the matter through.”

  “Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution,” Bork writes. And: “It follows, of course, that broad areas of constitutional law ought to be reformulated.” And: “The distinction between rights that are inherent and rights that are derived from some other value is one that our society worked out long ago with respect to the economic market place . . . . A right is a form of property . . . . The modern intellectual argues the proper location and definition of property rights according to judgments of utility . . . . As it is with economic property rights, so it should be with constitutional rights relating to governmental processes.”

  The notion that the individual or his rights exist for the state, and to serve its “judgments of utility,” is the basis of Bork’s ideology. A notion more antithetical to the whole purpose and structure of the Constitution can hardly be imagined. “There is no principled way in which anyone can define the spheres in which liberty is required and the spheres in which equality is required.” But the Constitution does not speak of “spheres,” and the founders of the republic discerned so little of the tension that Bork consistently finds between “liberty” and “equality” that the same sentence of the Declaration which speaks of “liberty” as one of men’s “unalienable rights” includes the statement “All men are created equal.”

  “It is emphatically the province and duty of the judicial department,” Justice John Marshall said in 1803, in the great case of Marbury v. Madison, “to say what the law is.” To that end, insulated by life tenure from the majoritarian pressures to which members of the two other branches, and of the state legislatures, were subject, the federal courts were empowered—indeed, obliged—to protect, from the prospect of “tyranny” by any of these majoritarian bodies, individual constitutional rights. The Constitution is complicated, intricate, difficult to understand and apply. That has been part of its continuing vitality. But two hundred years of decisions by the Court have understood ever more clearly that it was the intention of the Framers to make very difficult—to require the state to give fairly compelling justifications for—any attempt to take any of those individual rights away. And the reason Judge Bork’s whole formulation is more disturbing than the mere ruminations of an ideologically extreme, revisionist professor is that he misapprehends the nature of “strict construction” in such a way as to compel him, as a “principled” judge, to abdicate the judicial duty “to say,” on behalf of the individual constitutional right against the state, or on behalf of one branch of the federal government bringing suit against another, “what the law is.” And yet nothing could be more apparent from his writings than that he is and intends to be a highly “activist” Judge, concerned less with theory than with results, and with reaching what he considers certain desirable outcomes.

  The consistent form of his activism has so far been repudiation. Sometimes, particularly in congressional hearings, he rather tepidly and ambiguously repudiates prior positions of his own. But when it suits him, and if the result he wishes to reach requires it, he repudiates, without hesitation, the clear text of the Constitution itself. Thus, if the Constitution says explicitly, “Congress shall make no law . . . abridging the freedom of speech,” Bork writes, “Laymen may perhaps be forgiven for thinking that the literal words” are what is meant, and that any legislation seeking to censor or repress that speech bears the burden of explaining why an exception should be made. “But what can one say of lawyers who think any such thing? Anyone skilled in reading language should know that the words are not necessarily absolute . . . . We are, then, forced to construct our own theory of the constitutional protection of speech.”
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  Having set aside, in other words, “original intent” as it is expressed in a specific provision of the Constitution, he proceeds to attack also, as “deficient in logic and analysis as well as in history,” the “clear and present danger” standard that was first developed by Justices Holmes and Brandeis in the years after World War I. He wishes to overrule all the free-speech cases that elaborated and refined that standard, and then to apply instead the test set forth in his “own theory,” which leaves constitutionally protected only what he calls “explicitly political speech,” a category that he defines so narrowly as to exclude not only what most people mean by “speech” but also what is generally meant by “political.” If Judge Bork’s narrow conception of “explicitly political” speech had prevailed against the sermons, marches, boycotts, and sit-ins that advocated violation of what the federal courts eventually found to be bad and lawless state laws, those laws would never have been found unconstitutional, and there would still be Jim Crow in the South.

  What he clearly wants, and clearly intends on the Court to vote to achieve, is to overrule as well many other important lines of cases—concerning, for instance, the right of privacy. Bork believes quite simply that no such right exists: that it is a “court-created right”—or, rather, an imposition of the “unprincipled preference” of the judges for the “gratification” of that “minority” which, for instance, wishes, as in Griswold, to be free to use contraceptives, over the “gratification” of that majority which wishes to be free not only not to use contraceptives but to prevent anyone else from using them. He does not acknowledge, or appear to perceive, a difference in the order of “freedom” embodied by choosing to do or not to do something and “freedom” to prevent anyone else, even in private, from doing or not doing whatever it is. In fact, Bork routinely uses the vocabulary of coercion to describe choices of the private citizen, and the language of “loss of liberty” or “loss of freedom” to describe the position of the majority whose intrusion the private citizen is trying to resist.