After the Tall Timber (46 page)

It sometimes seems that if a genuine conservative, of real distinction, were ever on the Court, one would find Justice Rehnquist in dissent.

The authors’ partiality for the youngest Justice makes his influence on their book considerable, as considerable in its way as (and analytically more important than) the influence of the clerks. Their error, for instance, about what Justice Stewart wrote in
Roth
—no due process for non-government-created rights, instead of no due process for non-government-created
property
rights—originates, in all probability, with Justice Rehnquist, who (in consistently eliding liberty and property rights) gradually
has
been trying to obscure precisely the distinction Justice Stewart made. In
Arnett v. Kennedy
, which most lawyers would agree was his worst opinion (although the authors cite two others as his “worst”), Rehnquist further managed, by a characteristic piece of analysis, to deprive due process of any meaning—as was noted by his colleagues, including Justices White and Powell, but not by the authors here. In their rapport with the youngest Justice, the authors miss the essence of just such attempts to “slip through a major policy shift.”

If the book fails—in its legal analysis, in its efforts to find and disclose important secrets, as an account of the Court in any significant or coherent sense—why is it an important book at all? Because of who the authors are and the very extent of their ambition:
Inside the Supreme Court
.

The relation between the press and the courts, in our society, is rarely devoid of interest. It is an important event in the history of both institutions when highly regarded journalists approach the nation’s highest Court. The trouble is, it turns out to be futile to approach the subject in this way. It is not unusual for people to misapprehend the nature of the institution and make more or less misguided approaches to Justices. Chief Justice Burger himself made at least one unjudicial approach, in the matter of the bombing of Cambodia, to President Nixon. This story, however, is not the authors’ scoop but Mr. Nixon’s, in
RN
.

What does the failure mean? It means that certain techniques, perhaps well suited to investigation of breaking stories of a criminal nature, are entirely unsuited to extended, serious analysis of other matters. The only scoop there could possibly be about an institution as public as the Supreme Court
would
be a revelation of crime or corruption—of which Woodward and Armstrong, at least, found none. It may be that an analytic mind and an integrating theme—an instinct for which facts have meaning, which are meaningless, and which are not even facts—are more suitable than an investigative reporter’s sheer persistence, and obsession with keeping (his own) and breaking (others’) secrets, to pursuing certain kinds of stories. Most stories—apart from affairs of the military, of crime, and sometimes of the heart—are not, after all, secrets
as such
. Anticipation of this book was high, in journalistic and in legal circles. The Court, with the possible exception of the relation of clerkship, survives—no more nor less public than it ever was. Investigative reporting, perhaps, might think again.

New York Times Book Review
December 16, 1979

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 Journal
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.”