Robert H. Bork, lion of a legal minority that thought the judiciary should show due deference to the will of the popular majority, is dead at eighty-five years of age.
Bork was a frequent contributor to these pages, never more famously than in “The End of Democracy: Our Judicial Oligarchy,” the lead essay of this magazine’s most famous symposium.
In the piece, Bork wrote: “This last term of the Supreme Court brought home to us with fresh clarity what it means to be ruled by an oligarchy. The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control. Only Justices Antonin Scalia and Clarence Thomas attempt to give the Constitution the meaning it had for those who adopted it. A majority of the court routinely enacts its own preference as the command of our basic document.”
Only a change in our institutional arrangements can halt the transformation of our society and culture by judges. Decisions of courts might be made subject to modification or reversal by majority vote of the Senate and the House of Representatives. Alternatively, courts might be deprived of the power of constitutional review. Either of those solutions would require a constitutional amendment. Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision.
That suggestion will be regarded as shocking, but it should not be. To the objection that a rejection of a court’s authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience. The Taney Court that decided Dred Scott might well have decided, if the issue had been presented to it, that the South had a constitutional right to secede. Would Lincoln have been wrong to defy the Court’s order and continue the Civil War? Some members of the Supreme Court were edging towards judging the constitutionality of the war in Vietnam. Surely, we do not want the Court to control every major decision and leave only the minutiae for democratic government.
In a 2000 symposium on what to expect in the new millenium, Bork held to his basic pessimism:
When law is personalized and politicized, its force and impact are controlled by public relations and private moralities, not by majority preference. We have been on this course for some time, as shown by judicial rule without recourse to law, jury nullification of law, and, perhaps especially, bureaucracies that lay down most of the law that governs us with, at best, minimal accountability to either the people or their elected representatives and without concern for consistency. . . .
There surely has always been an element of this in our use of law, but that element seems to be expanding rapidly. If it is, the “rule of law” and “democracy” in the next millennium will be radically different from the idealized versions of them that most of us carry in our heads. Ruleless “law” will be a political weapon and control of the judiciary will therefore be a political prize. “Democracy” will consist of the chaotic struggle to influence decision makers who are not responsive to elections. . . .
This is not a forecast of doom but merely of a continuing transformation of law and government, a journey to a new polity and society whose details we cannot even begin to imagine today. It may be tolerable, as many societies have been without the rule of law or democratic self-government. The future being uncertain, however, it will be the part of wisdom to resist the changes we see.
Robert Bork resisted those changes in good faith and great loyalty to the principles of a democracy that he reluctantly believed—and powerfully argued—that he had outlived.