by George Anastaplo (1987)
My expectation is that Robert H. Bork, as a member of the United States Supreme Court, would be at least as much a disappointment to the most partisan Reagan conservatives as Felix Frankfurter was to the most partisan Roosevelt New Dealers.
One complication in assessing any judicial appointment at this time is that the issues of the past decade or two, upon which a candidate’s record may be fairly clear, are not likely to be the issues during his career on the Supreme Court over the next decade. Predictions are even harder to make now, at a time when we are moving from one political era into another, than they normally are with any appointment to the Court.
What the new political era will be like cannot be known until much more is known than we can now know about future East-West relations, about economic and especially financial developments both at home and abroad, and, perhaps most important, about educational reforms in this country.
Even so, it is only natural, or at least inevitable, that a candidate for judicial office will be judged, at least in part, by the record he has made one way or another with respect to various issues already dealt with by the courts, especially if such issues reflect a man’s character and “philosophy.”
A half-dozen such issues associated with Judge Bork depend upon readings of the Constitution. It may be instructive to consider each in turn, however briefly. The first two issues draw upon the First Amendment; the next three issues drawn upon the right to privacy discerned in, among other places, the Fifth, Ninth and Fourteenth Amendments; and the final two issues draw upon the Fourteenth Amendment.
Let us begin with the guarantee in the First Amendment with respect to freedom of speech and of the press. This is the constitutional right on which so much depends for us and which is exercised when we the people, like the Senate, investigate and assess judicial nominations and performance. Judge Bork is often criticized for arguing that what is protected by the First Amendment is predominantly political speech. His reading here of the First Amendment does seem sound to me, for it means that we have the freedom, as a self-governing people, to discuss fully how the government conducts itself in both war and peace. We can reasonably expect this freedom to continue to be as uninhibited as it has been for some years now. Among the matters completely open to our inquiry is what, if anything, should be done about such forms of expression as obscenity, commercial speech and defamation. To recognize the primarily “political” thrust of the Speech and Press Clauses of the First Amendment does not mean that the government may do anything it pleases about other forms of expression. Significant due process limitations, including that special form of due process reflected in the “no prior restraint” rule, have still to be reckoned with. Acts, as distinguished from verbal expression, are not protected by the First Amendment, although care must be taken to make certain that illegal acts not be punished more harshly than they would otherwise be because of any unpopular ideas associated with the proscribed acts. How much one should be culpable for the advocacy of violations of the law need not be a First Amendment problem at all if ordinary rules and standards about incitement, criminal intention and proximate cause are respected in any particular instance. We should be, however, properly suspicious, and so should Judge Bork, of any government response which ignores ordinary rules and standards because of the political significance of an offender’s actions.
Another major First Amendment concern is with religion—with the establishment of religion and with the free exercise of religion. Judge Bork cannot be expected to do much worse in sorting out guarantees here than the Supreme Court has done for the past half-century. It has long seemed to me that public support of educational programs which is made available to all qualified church-sponsored schools does not constitute an establishment of religion. Nor does it seem likely that there will be in the foreseeable future any sustained interference in this country with the free exercise of religion, whatever the alarms heard from time to time about such things as school prayers, “creationism,” and créches on public property. In any event, Judge Bork probably shares with respect to these matters the opinions and confusions of most intellectuals today.
We move now to the “privacy” issues, beginning with recent concerns about the Bork reservations with respect to Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In those cases the Court held in effect that parents could control their children’s education to the extent of determining the subjects taught them and of choosing the kind of non-public schools they may attend. If Judge Bork indeed has reservations about such cases he is to be commended, since there is little if any constitutional basis for the positions taken by the Court in opposition to the States involved, whatever the merits may be of the “policy” considerations involved here.
Much may be said, of course, about the most controversial issues of our day, the abortion question. (Not unrelated to this question are questions about the status of women’s rights and about legislation with respect to homosexuality.) It is difficult to be as certain as some evidently are about the extent and implications of a constitutional right to privacy, especially if that right is seen as something for judges to develop and apply independent of legislative guidance. Whatever one may think of the result in Roe v. Wade (1973), the constitutional reasoning of the Court on that occasion was rather unpersuasive. Be that as it may, it is hardly likely that anything the United States Supreme Court may say now is going to lead to the resurrection and the enforcement (especially in urban centers) of State laws anywhere near as restrictive as before Roe v. Wade. In any event, I know of no one, except perhaps for Judge Bork, who knows what his position would be on an issue which may now be hopelessly complicated. As for women’s rights generally, the ever-growing political power women now have available has to be reckoned with. This is likely to be far more reliable and effective than what the judges may now do on behalf of women.
We do not know what the Bork position has been on the Griswold v. Connecticut contraceptive decision (1965). His reservations about the Court’s reliance there upon a right to privacy have been much criticized as indicative of a reactionary approach. But the case itself was rather silly, exploiting as it did a state law which was not being enforced (and which is not likely to be enforced in present circumstances). (Much the same can be said about the 1986 Georgia sodomy case.) However that may be, Judge Bork is in good company if he continues to have reservations about the constitutional reasoning of Griswold. After all, Justice Hugo L. Black dissented on that occasion, even though he liked his liberty and his privacy as much as any man. It is well to be reminded from time to time that foolishness and injustice in a law are not the same as unconstitutionality.
We move now to Fourteenth Amendment limitations upon the States (aside from what is done in conjunction with the right of privacy and the Fifth and Ninth Amendments). Judge Bork may be correct to emphasize, as he apparently does, the primarily racial concern of the Equal Protection Clause. (It remains a nice question, worthy of considerably more hard thinking, whether “race” includes, as similarly biologically-grounded in character, gender factors and “sexual orientation.” No one is going to do anything now to repudiate either Shelley v. Kraemer (the restrictive covenant case of 1948) or Brown v. Board of Education (1954). It is unrealistic to believe otherwise, whatever Judge Bork might once have believed about these landmark cases. Far more troublesome in the years immediately ahead are likely to be the efforts being made, and that probably should continue to be made, to secure the results, in the name of racial justice and domestic tranquility, which are identified with “affirmative action.” Related to this may be the school-busing controversy, except that there seems to be a growing recognition on various grounds of the dubiousness of recourse to the busing remedy. In any event, Judge Bork should profit, as can the rest of us, from the extended discussions we shall have to have, again and again, of affirmative-action programs in this country, discussions which include repeated assessments of what is aimed at and what is indeed accomplished.
Finally, in this inventory of current issues, there is the capital punishment problem. It is far from clear what the constitutional basis can properly be for judicial restraints upon capital punishment, except when old-fashioned equal protection and due process standards are applied in the instances where the race or poverty of the accused reflect systematic unfairness and improper discrimination. Judges do have a role to play here, but enduring reforms depend as well upon an enlightened public opinion and upon State legislatures.
It is because Judge Bork has been most deferential, at least in principle, to the political process that his advocacy of judicial restraint is under attack from some quarters. Certainly, he does stand for a much less aggressive use of judicial power to accomplish a social agenda than we have become accustomed to. The policy-making branch recognized by the Constitution is, of course, the legislative—and Judge Bork can be expected to tend to stand aside as Congress (an institution that is evidently going to remain Democratic for some time) and the State legislatures experiment with one policy after another.
This is not to suggest that there is not a place in our system for a refined judicial conscience and for judicial flexibility. A proper insistence upon due process criteria provides a conscientious judge considerable leeway. But any judge who is aware of judicial limitations is likely to defer to precedent and to what his predecessors have done over the years, especially since novel issues are often pressing to be decided. He is likely as well to defer to political developments. Those political-active citizens who are most concerned about the Bork nomination should be reassured, not threatened, by his advocacy of judicial restraint.
Indeed, the Rehnquist Court, with or without Judge Bork, is apt to do for the Warren Court what the Eisenhower, Nixon and Reagan Administrations have done for the New Deal: a major social-political “revolution” can thereby be confirmed, making it evident that such grand developments, including the consequences of irreversible State legislative reapportionments, are not due primarily to the “ideology” of chance men in office but rather reflect long-term political movements that are difficult to reverse. Perhaps this is another way of suggesting that judges may be far less important than we often take them to be.
These remarks were prepared for a Faculty Speakers Series program, “Should Judge Bork Be Approved as a Justice of the Supreme Court?,” Loyola University of Chicago School of Law, September 9, 1987. See George Anastaplo, “Bork on Bork,” 84 Northwestern University Law Review 1142, 1145-50 (1990). Robert H. Bork and George Anastaplo were classmates at the University of Chicago Law School.