Two of the most vilified judges in US history have probably been Judge Robert H. Bork and Chief Justice Roger Taney. Both gained notoriety early in their appointments by demonstrating their willingness to fire opponents of a domineering President’s policy (Taney, when in the Jackson administration, fired directors of the Bank of the United States who resisted Jackson’s unconstitutional withdrawals, and Bork, as solicitor general, acted as Nixon’s agent in the Saturday Night Massacre). Both went on to judicial careers in which their adherence to the same theory—original intent—led demagogic politicians (Abraham Lincoln, Edward Kennedy) to defame them as little less than demons in black robes. “Nothing personal,” as Kennedy told Bork.

Justice Taney would probably have little sympathy for Bork, who attacks his Dred Scott decision as an example of judicial activism (rather than the exercise in original-intent jurisprudence Taney believed it to be). However, Taney would have recognized the techniques that liberals used as part of their successful effort to defeat President Reagan’s nomination of Bork to the Supreme Court. Kennedy’s infamous speech—”Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters. rogue police could break down citizens’ doors in midnight raids”—set the tone for the liberal smear campaign that followed.

The story is best told in Ethan Bronner’s Battle for Justice, a breezy journalistic account of the political maneuvers that led to the defeat of the Bork nomination. Bronner’s chief revelation is that Bork dug his own grave in his confirmation hearings, confusing the right and unnecessarily horrifying the left.

The right could only be perplexed by the way that Bork, who had once said, “An originalist judge would have no problem whatever in overruling a non-originalist precedent because that precedent, by the very basis of his judicial philosophy, has no legitimacy,” promised at the hearings not to seek to overturn Brown v. Board of Education, the 1954 desegregation decision, a classical piece of judicial activism in defiance of original intent. Such “confirmation conversions” might have been forgiveable if they had helped him get onto the Court. Bork himself, however, seemed to live up to the liberal caricature of him as an insensitive monster. As a federal judge, he had ruled in favor of a chemical company that had allowed female workers to keep their jobs in a toxic environment only if they agreed to be sterilized. Grilled, Bork told the Senate, “I suppose the five women who chose to stay on that job with higher pay and chose sterilization—I suppose that they were glad to have the choice—they apparently were—that the company gave them.” One of the women in question informed the committee that supervisors and fellow workers “referred to us like animals, such as dogs being spayed and neutered. They told us we were branded for life.” Bork admires Justice Oliver Wendell “Holmes, who, admonished to “Do justice,” replied, “That is not my job. It is my job to apply the law.” Even so, Bork’s argument that sometimes agonizing decisions are necessary, if judges are to interpret rather than make law, might have been more compelling if he had appeared agonized.

Not surprisingly, Bork’s own account of his ordeal in the final part of Tempting America is distant and less informative than Bronner’s account. Bork’s critique of judicial activism, however, is much more rewarding. As a theorist, Bork resembles the hedgehog of Archilochus, who knew only one thing, but a very big thing. The big thing that Bork knows is that legislatures, not judges, should make laws.

“The clash over my nomination,” Bork writes, “was simply one battle in [a] long-running war for control of our legal culture,” in which judicial activists believe that constitutions and statutes “are malleable texts that judges may rewrite to see that particular groups or political causes win.” Where a judge gives in to the temptation to enact his own views of justice instead of what the law requires, “A judge has begun to rule where a legislator should.” Gibbon put it more memorably: “The discretion of the judge is the first engine of tyranny.”

After giving a history of judicial activism from the early days of the Republic through the “constitutional revolution” of the New Deal and the Warren Court, Bork, a former Yale law professor, takes the lamp of Diogenes into the carnival-tent of legal theories that attempt to justify judicial activism. He not only fails to find an honest man but condemns the whole edifice as a firetrap. He is just as critical of conservative and libertarian advocates of judicial activism, such as Chicago’s Richard Epstein, as of their more numerous liberal colleagues, such as Stanford’s John Hart Ely and Bork’s late friend and colleague at Yale, Alexander Bickel.

While Bork the critic of judicial lawmaking is rigorous and persuasive, Bork the—legal theorist leaves something to be desired. Bork’s own view of the legitimate guides to the “original meaning” of constitutional provisions would reduce judicial discretion, but not much. The search for original meaning can lead to “the constitutional text, records of the Philadelphia convention, records of ratifying conventions, the newspaper accounts of the day, the Federalist Papers, the Anti-Federalist Papers,” as well as legislative and executive constructions, early treatises, “the structure of the document and the government it created” and—we’re still not finished—the need to avoid “[r]esults that are particularly awkward.” This is not a method of construction, it is an explosion in a library. Is a conflict between the Federalists and the Anti-Federalists over federalism to be resolved by reference to a Philadelphia gazette of 1787, or by an analysis of the structure of the US government? Using this catholic version of original meaning, a clever Borkian judge could probably arrive at any results he chose.

So fond is Bork of extrinsic evidence of legislative intent that he would have judges refuse to enforce laws that come without How-To manuals for their application. He derides the Fourteenth Amendment’s “privileges and immunities” clause as “an ink blot” and “a dead letter” because no one is sure exactly what its drafters intended. “There being nothing to work with, the judge should refrain from working.” The idea that a judge should refuse to enforce a law merely because of a lack of legislative history is alien to the Anglo-American legal tradition. Indeed, the legal historian H. Jefferson Powell recently demonstrated that the Framers for the most part rejected reliance on external evidence of the drafter’s or ratifier’s intent, seeking to find intent in the text itself. If Bork’s theory were adopted, then the lapidary phrasing of not only the Constitution, but most federal and state laws, would force judges to go on strike.

Bork himself violates his weird and novel rule when he suggests that the Supreme Court should have struck down Tennessee’s apportionment law in Baker v. Carr (1962) under the mysterious constitutional clause guaranteeing “every State in the Union a Republican Form of Government.” Although the Supreme Court has never struck down a law under this provision, “Baker v. Carr was a case in which the guarantee clause should have been applied, precisely because a situation in which the majority is systematically prevented from governing is not what the Founders meant by a republican form of government.” How does Bork know? Has he forgotten the slave states? Or Rhode Island, which until the 1840’s permitted only eldest sons of landowners to vote? Or the republics of Switzerland, the Netherlands, Venice, Lombardy, and Greece? Why is the Fourteenth Amendment’s privilege and immunities clause “a dead letter,” but not the republican guaranty clause?

Another example illustrates the now-you-see-it-now-you-don’t nature of Bork’s fidelity to original meaning. In Meyer v. Nebraska (1923) the Supreme Court struck down a Nebraska law making it a crime to teach a foreign language to a child who had not passed the eighth grade, while two years later in Pierce v. Society of Sisters the Court invalidated an Oregon law making public school attendance until the eighth grade compulsory. In each case the Court struck down the state laws because they offended “substantive due process” (that is, natural justice, as divined by the Supreme Court).

Instead of finding judicial restraint appropriate in these circumstances, Bork agrees with the results, and suggests alternate rationales that are scarcely less dubious than substantive due process. According to Bork, the Court should have struck down the Nebraska law in Meyer as a violation of the First Amendment because “learning German . . . was thought by the state to pose the danger of the inculcation of foreign ideas contrary to the best interests of the United States.” The compulsory public education law, Bork suggests, violated not only the free speech clause but the “free exercise of religion” clause of the First Amendment, because the Oregon statute “was largely the product of anti-Catholic prejudice.”

The same Bork who elsewhere in the book writes, “The actual Constitution does not forbid every ghastly hypothetical law,” shrinks from the logic of his position when he confronts ghastly actual laws. Bork would have severely criticized the First Amendment arguments against the state laws in Meyer and Pierce, one suspects, if someone else had made them. Can a state have no other reason for censorship to forbid bilingual education in early grades? Why is compulsory public school attendance a violation of the free exercise clause, but not compulsory taxation to support public schools? To compound the irony, the Supreme Court, in order to abide by Bork’s theories, would have had to conclude that the First Amendment had been applied to the states as well as the federal government by “incorporation” in the Fourteenth Amendment in 1868. The “incorporation” doctrine was not even invented until the 1940’s, and Bork himself criticizes it because it “enormously expanded the Court’s power over the states.”

From this kind of judicial restraint the liberals have little to fear. Bork, moreover, is opposed to overruling many mistaken liberal judicial decisions. “Thus, it is too late to overrule . . . those decisions validating certain New Deal and Great Society programs pursuant to the congressional powers over commerce, taxation, and spending. To overturn these would be to overturn most of modern government and plunge us into chaos.” However, “it was never too late to overrule” 19th- and early 20th-century cases shielding business from government regulation, “because they were unjustifiable restrictions on government power.” Rest in peace, Franklin and Lyndon: “There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, ‘Go and sin no more.'”

The argument that overturning established but mistaken precedents would create “chaos” in the welfare state is no more compelling than the statement of the scholar who, though correct, had lost an argument with a Roman emperor: “I am not ashamed to be confuted by the master of fifty legions.” When a conservative Supreme Court held that a national income tax was unconstitutional, the American people in 1913 ratified the Sixteenth Amendment. Why should they be denied a similar chance to constitutionalize—or reject—the shaky underpinnings of the welfare state?

Curiously, Bork—the obedient agent of Nixon’s Saturday Night Massacre—does not discuss two outrageous pieces of judicial activism, Myers v. United States (1926) and Curtiss-Wright (1936), which, although neither can be squared with “original meaning,” are today used by Republican Presidents to justify the extension of arbitrary presidential power over federal agencies and foreign policy. One gathers that these “transgressions of the past,” too, would be forgiven; insistence on “original meaning” might constrain a Haldeman, an Erlichman, or an Ollie North.

The examples Bork gives of his method, then; suggest that he would have been inconsistent in applying it. Even so, his approach is an immense improvement on the even less principled practices he criticizes. If we ever reach the point at which the excessive flexibility of Bork’s originalism is the major problem with the judiciary, we will have ample reason to be grateful—and we will have Bork the critic of judicial activism largely to thank.


[Tempting America: The Political Seduction of the Law, by Robert H. Bork (New York: The Free Press) 432 pp., $22.50]


[Battle for Justice: How the Bork Nomination Shook America, by Ethan Bronner (New York W.W. Norton & Co.) 399 pp., $22.50]