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.”
He concluded:
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.
December 19th, 2012 | 11:23 am
Just so long as you understand that such reasoning would support Dred Scott v Sandford and Plessy v Ferguson, while opposing Brown v. Board of Education.
December 19th, 2012 | 2:00 pm
The first line of this piece sums up Judge Bork as being [a] “lion of a legal minority that thought the judiciary should show due deference to the will of the popular majority[.]” I have to say that I think that misses the core of his contribution to constitutional reasoning by quite a long ways. It implies that he thought the dangers of judicial oligarchy would be best addressed if judges took polls of popular sentiment before making their decisions.
I would suggest that he believed that judges ought be restrained instead by following the law. And this is why he advocated for interpreting the U.S. Constitution according to its original understanding, that being the only rational and defensible substitute to having judges making decisions based largely on what just seems right to them at the time.
(Rest in peace, Judge Bork.)
December 19th, 2012 | 6:48 pm
Ray,
What language in the Constitution supported Dred Scott and Plessy v. Ferguson? Do you mean the language sanctioning slavery — where is that exactly? Could you point us to that clause? Separate but equal — where is that clause? You and Justice Roger Taney apparently believe the Constitution sanctioned slavery and Jim Crow. Abraham Lincoln and Martin Luther King disagreed. I’ll throw my lot in with them over you.
December 19th, 2012 | 7:08 pm
Ray Ingles, just so you understand you’re wrong.
You committed the same error as Sen. Biden and Sen. Kennedy did during Judge Bork’s confirmation hearings after he was nominated for a seat on the U.S. Supreme Court by President Reagan. Get the transcript and read how Judge Bork politely but resolutely schooled them.
December 20th, 2012 | 9:36 am
Publius –
http://en.wikipedia.org/wiki/Three-Fifths_Compromise
At no point did I say I liked the compromise that the Founders came up with to form the United States, allowing slavery. But it’s quite clear that they did.
Micha –
More importantly, try to take in what Bork is saying: An originalist approach to the 14th Amendment supports both apartheid and court-ordered integration. This, according to Michael McConnell of the University of Utah, a far more serious originalist than Bork, “is more typical of the constitutional methodology Bork criticizes than it is of his own professed originalist methodology.”
December 20th, 2012 | 9:49 am
Publius –
BTW, are you going to claim that “the will of the popular majority” didn’t support slavery and Jim Crow, at the time?
December 20th, 2012 | 11:55 am
Ray,
Thanks for pointing out the 3/5 clause — as I’m sure you know, the southern delegates to the Constitutional Convention wanted their slaves counted as whole persons so they could increase their power in the House of Representatives. It was the anti-slavery Northern delegates who didn’t want them counted at all .. thus the 3/5 compromise. I know folks on the Left love to cite this as an example of the evil nature of the founders and the Constitution they drafted, which makes for great popular history but is of course innaccurate.
December 20th, 2012 | 2:10 pm
as I’m sure you know, the southern delegates to the Constitutional Convention wanted their slaves counted as whole persons so they could increase their power in the House of Representatives.
And as I am sure you know, slaves weren’t considered citizens, nor could they vote. It was not that the South considered slaves whole persons and the north considered them 3/5 persons, making the South more supportive of equality for slaves. It was that the South wanted slaves to count toward the population that representation in congress would be based on, thus giving southern voters more representation per voter than Northern voters.
It was definitely not the case that the South thought more highly of slaves than did the North, and thought of them as complete persons while the North considered them partial persons. It was not out of any good and worthy motives that the South wanted slaves counted as full persons.
December 20th, 2012 | 8:53 pm
David,
If you read what I wrote, it was the South that wanted their slaves counted as full persons for purposes of increasing their power in the House of Representatives. Those who pushed for the 3/5 clause, despite what the Left likes to believe, didn’t view slaves as 3/5 of a person. But thank you for repeating my point.
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