Judge Bork, a Contradiction in Terms : Angling for Confirmation, He Pretends to Be Mainstream

The confirmation hearings before the Senate Judiciary Committee have revealed that there are two Robert H. Borks: the Bork who forthrightly said what he thought before he was nominated to the Supreme Court, and the Bork who wants to be confirmed as an associate justice of that court.

The pre-nomination Bork we have known for 25 years from numerous speeches, articles and judicial decisions. That Bork subscribed to six basic propositions as part of his judicial philosophy:

First, Bork believed that there is no rational way to distinguish good values from bad ones: The only thing that anyone can say about concentration camps and peppermint creams is that some people like them and others don’t.

Second, Bork’s belief that value choices are irrational has led him to extol the virtues of both free markets and democratic processes. Both such institutions are good because they are the arenas for the competition of the preferences of citizens. Given that all preferences are equally arbitrary, so that no court can rationally choose between them when they compete, the only thing that a judge can do when value judgments are called for is respect the value judgments implicit in the outcomes reached in those arenas, no matter what those outcomes may be.

Third, such belief in the goodness of democratic processes in turn motivates Bork’s belief that judicial review of legislation is illegitimate. Legislation is the product of democratic processes, and judicial review, by voiding that product on occasion, is anti-democratic and must be severely curtailed.

Fourth, the belief in the goodness of free markets motivates Bork to his well-known penchant for voiding the regulation of business. Even though regulatory legislation is the output of democratic processes, Bork often values the preservation of free markets more than he respects the democratic process. For markets can be seen to be a more accurate expression of majority preferences than the legislative process is; citizens “vote” more often and more directly with their dollars than they literally vote as part of the political process.

Fifth, Bork’s belief that value choices are irrational has also led him to search for some value-free theory with which to interpret the Constitution. Believing that values are arbitrary, Bork is motivated to avoid them in his reasoning processes.

Sixth, this search for a value-free theory of interpretation combines with Bork’s belief in the prima facie illegitimacy of judicial review, and both together jointly motivate Bork to his notorious intentionalist theory of interpretation. According to this theory, a judge can interpret the Constitution so as to overturn legislation only when the framers of the document intended such a result. Such a theory is both value-free (looking only for historical intentions of certain people) and extremely restrictive of the power of judicial review (because very few things can be shown to have been within the minds of those who framed the Constitution or its amendments).

Bork’s beliefs about the nature of morality, the goodness of free markets and democratic processes, the illegitimacy of judicial review except when used to protect free markets, and the need for a valuefree interpretive theory that asks only about the framers’ intent together form a tightly linked set of beliefs.

One question before the Senate is whether this judicial philosophy passes muster as an adequate view of the role of a Supreme Court justice. My own view would be that the first, third and sixth parts of that philosophy are jointly disqualifying in a constitutional democracy like ours, committed as we are to the view that each of us has rights that are not to be measured by the preferences of others, and that such rights must be protected by judicial review even when the majority prefers that we not exercise them. The natural-rights basis of the Bill of Rights, the status of the Constitution as law cognizable by the courts, and the appearance in the text of the Constitution of general language going well beyond any particular intentions of the framers should be the bedrock of any nominee’s judicial philosophy.

But now there is a further point to consider: We have seen another Robert Bork emerge from the confirmation hearings. This new Bork, despite mouthing the old Bork’s philosophy in his formally prepared general statement to the committee, repudiates the implications of that philosophy when the questions get tough.

For example: If the old Bork was correct in his claim, which was repeated during the hearings on Wednesday, that the framers of the 14th Amendment had only discrimination against blacks in mind when they used the phrase equal protection of the laws , then it would seem that the phrase could have no application to other forms of discrimination, be they based on sex, sexual orientation, religion, national origin or age. Indeed, this was the conclusion that the old Bork unflinchingly endorsed.

The new Bork does not draw this conclusion; he said during his questioning that the equal-protection clause applies “exactly the same standard” to sex-based discrimination as to race-based discrimination. Indeed, the new Bork now says that any distinction that is drawn by legislation between classes of persons should be reviewed under the clause for its reasonableness. Racial distinctions, he said, are almost always unreasonable, but sex-based distinctions, distinctions between different classes of criminals for the purposes of sterilization, and even distinctions about married persons using contraceptives will on some occasions be unreasonable, and thus unconstitutional under the clause.

This new Bork is himself a very reasonable fellow. Indeed, his view of the equal-protection clause is much closer to the mainstream views on how it should be interpreted. But has the new Bork ever met the old one? How can one person actually believe both that the equal protection clause was intended to protect only against racial discrimination and that all other discriminations may nonetheless be voided under the clause whenever they are unreasonable? What happened to using the framers’ intent to limit the clause to race? Where is restrictive and value-free judicial review, when judges can review all legislative distinctions on a standard that is as value-laden as reasonableness?

This is more than a problem about equal protection. The new Bork now says that there might even be some basis in the Constitution for a right of privacy, despite the lack of any intention about privacy in the framers’ heads; the old Bork’s trenchant criticisms of there being any such right are now construed to be objections only to the lack of definition of the right and the mode of reasoning with which it was derived. Further, that the First Amendment does protect all forms of speech, not just political speech, which the old Bork held to be the framers’ intent. Further, that the Fourth Amendment prohibition against unreasonable search and seizure can apply to electronic eavesdropping, despite the impossibility of the framers having had an intent one way or the other about technology in the 20th Century.

The old Bork was a consistent fellow--thoroughly wrong, to be sure, but an unflinching advocate of most of the implications of his judicial philosophy. This new fellow has adopted much more mainstream constitutional-law positions, but at the cost of being inconsistent with the old judicial philosophy. Will the real Robert Bork please stand up?