The great sound and fury over the nomination of Robert Bork to the U.S. Supreme Court included many grand proclamations from all sides concerning the original intentions of the constitutionalists and the relevance of those intentions to our society today. It is clear to anyone with a modicum of knowledge about the great issues involved that there are rational grounds for sincere disagreements on these matters. Many of us believe, for example, that Judge Bork’s “legal positivism” denies the basic ideas of human nature, conscience, and natural rights that form the very foundation of the Constitution. Others would insist that he does not allow for sufficient interpretation to meet emergent and urgent social trends. But the most obvious fact of all to anyone really concerned with the original intentions and with the practical problems today of governing our society by law, rather than by the impassioned sparring of politicians for advantages, is that the entire proceedings were a travesty of the original intention in providing for the consent of the Senate to appointments to the federal bench.
The basic purpose of making the federal judges appointees of the President and contingent upon the consent of the Senate, rather than making them elected officials, was to buffer or insulate them from the partisan passions of politics. Archibald Cox, one of the foremost liberal interpreters of the Constitution, has forcefully stated the vital importance of this basic purpose today: “If the federal judiciary loses its independence through gradual politicization—if the people come to see the court as just one more policy-making body—it will lose the capacity to render authoritative decisions upon the great questions of governmental structure and individual liberty left unanswered by the framers.”
Regardless of our differing analyses of Professor Bork and his principles, no reasonable observer of the mass-mediated Senate proceedings will deny that they have been a raging vortex of political passion. Any sincere historical scholar will also testify that our Supreme Court appointments have been periodically swept up in such vortices for most of this century, but that the Court’s sweeping liberal interpretations in recent decades have fired those passions and that the passions have grown more fierce since two of Richard Nixon’s conservative nominees were rejected. Judge Bork’s nomination has become a miniature Dreyfus Affair ripping our already tattered national consensus and blinding the politicians to the whole legal rationale for their authority to confirm judges.
Archibald Cox has strongly decried these growing political passions and the part played in arousing them by the sweeping liberal decisions of the court: “From 1950 to 1974, the court was mandating major institutional changes not only in the administration of justice but in the larger society. The desegregation cases reordered society throughout large regions. The reapportionment cases upset ancient political arrangements. The school prayer cases banished a practice familiar to generations of students. Each made ours a very much more human society, more equal, freer, and more respectful of individual dignity. Each was in keeping with the main currents of American history. Yet the resulting politicization raises concerns about the institutional costs of using judicial decisions so often to go so far so fast. If politically conservative justices come to be a majority, they will have to choose between greater restraint and a form of judicial activism not very different from that of their more liberal predecessors.”
Animosities inspired by the Supreme Court are strong evidence that we are now a highly politicized nation in which the actions of our federal courts have vast impacts on our everyday lives. It was only about 60 years ago that Calvin Coolidge observed, “If the Federal Government should go out of existence, the common run of people would not detect the difference in the affairs of their daily life for a considerable length of time.” Today the exact opposite is true, and one of the inevitable effects of the concentration of vast power in Washington is that Supreme Court decisions are important to us all.
But there are at least two other major causes for the political passions in these deliberations. The more important is the revolution that has taken place in the very meaning of “law” to most legal scholars, judges, and lawyers. The constitutionalists were imbued with the belief that human beings are able to reason and exercise free will to constrain the animal passions of human nature, including the passions of political factionalism. They knew well from their great knowledge of history that these passions are very powerful, but they believed it possible to devise a system of checks and balances in which men of goodwill who understood the dangers of such political passions, and who made their decisions within the constraints of experience, would be able to transcend them sufficiently to prevent a tyranny by mobs or by one faction from emerging. They saw law as the accumulation of the wisdom of commonsense experience and judges as the men of reason and scholarship who could interpret those historical precedents to fit emerging situations and, thereby, constrain the animal passions, especially the most powerful of all, the ferocious lust for power unleashed by all political factionalism. They believed, however, that judges could do this only if they deliberated and decided within the constraints of reason and scholarship, and only if they were chosen outside the vortex of political passions and then buffered from such passions by such devices as lifetime tenure and privacy in their deliberations.
It soon became apparent in the great controversies over federal powers that erupted over decisions by the Marshall court that the constitutionalists had underestimated the degree to which the political forces of our teeming and rambunctiously changing democracy would impinge on the decisions of the Supreme Court. Judges in the early decades were more swayed by personal and political partisanship than expected; in a few instances even major decisions by earlier courts were overturned by later ones, a procedure that violated the ideal of judicial decisions made in the full wisdom of accumulated legal precedents.
Nevertheless, the Justices on the whole did seem to be buffered from political passions and those in the later 19th century were much more scholarly and constrained in their decisions, a development that owed much to the increased scholarly standards of American law in general. Their decisions were generally made in the ancient tradition of the common law, that is, they made their decisions “at the margin,” cautiously adapting the ancient commonsense wisdom of the whole body of laws and precedents to the emerging, most lasting, and seemingly most wise social trends. While not many of the Justices attained the universality of Solomonic wisdom, few, if any, sought to change the whole course of the society by creating radically new interpretations of the accumulated wisdom. Right up to the New Deal, the vast majority of attacks on the Court were for supposed crimes of conservatism—”dragging their feet” against popular passions. The whole idea of law and judiciousness, as understood by the constitutionalists and by the majority of Americans today, has always been to conserve the wisdom of the ages, to conciliate and compromise sincere differences, and to be a bulwark against the evil passions that so easily sweep over us—threatening to sweep away all rights—in political warfare.
Today there is still a minority of legal scholars, judges, and lawyers who hold firmly to this classical liberal and moderate (Whig) conservative idea of law and judicial decisions, while there is an even smaller minority of politicians (most of whom are also lawyers) who agree with them, if less firmly. But the dominant majority of the legal professors and politicians now take it for granted that the constitutionalists were wrong. They assume, without examining the vast evidence from all civilizations, that law and judicial decisions are predominantly determined—caused—by political interests and passions and that, consequently, judicial decisions cannot to any significant degree be buffered from and transcend the political passions. (They share a kind of watered-down version of the economic determinism of Marxist theory that is now firmly embedded in the positivist, structuralist, and “critical” theories of the social sciences and history that are dominant in our law schools and “elite” universities in general, but the explanation of their views is not our purpose here.)
This revolution in legal philosophy is not a figment of conservative dread. It is a fact both admitted and hailed by honest liberal jurists. In his biography of Earl Warren, G. Edward White, who served as a law clerk to the Chief Justice, is explicit in showing that Warren, in his “mission to do justice,” had little concern for the Constitution or precedents. In How Courts Govern America, Richard Neely, a member of the West Virginia Supreme Court, argued that courts do, must, and should govern the nation by exceedingly liberal interpretations and provided practical guidelines for doing so. As he concluded: “Once we are willing to admit that courts have political roles which are dictated by the nature of other institutions, we can begin to speak to those roles directly and not in the slave language of constitutional interpretations, statutory construction, or result-oriented standards of review dressed up as neutral principles. . . . So the limits on court power in government are not set by either constitutional theory or discoverable law, but rather by the tolerance of the countervailing powers. What happens when Plato’s millennium of the philosopher kings actually arrives, I am not sure.”
The basic principle is obvious enough: Power makes right, as Thrasymachus put it; or as America’s liberal judges put it today, when they are as honest as Neely, the meaning of the law is what judges say it is, until someone exerts greater political force to constrain them. (Judge Neely is a graduate of Yale Law School and is quite conservative compared to some of the “critical legal theorists” ensconced at Harvard Law School. Critical theorists believe the whole idea of “law,” as defined by the constitutionalists, is both ludicrous and a weapon in class conflict. Their whole idea of “law” is best summarized as “dog eat dog.” By comparison, Vladimir Illych was a conservative.)
The second great change in this century that has exacerbated this politicization of the Supreme Court was produced by the 17th Amendment adopted in 1913. Since it was crucial to the whole intent of the constitutionalists to remove the appointment of Supreme Court justices as much from partisan politics as possible, while remaining consistent with the idea of checking their power with the always more important power of the voters, the Constitution made their appointment contingent on approval of the Senate, not the House of Representatives. It is now generally forgotten that the Senate itself was intended to be removed more from the partisan political vortex by making them six-year appointees of the state legislatures, while the House, intended to be the more immediate representatives of the wills of the people, was the only directly elected body of the federal government. The Senate, then, was to be buffered from political passions of the day by making the senators appointees with six years of tenure (which on average would allow them to ride out the impassioned cries and tumults of “mobs” in the streets and of journalists in the popular press). When the Constitution was amended to make the senators direct political representatives of the people, a crucial buffer was destroyed.
Many lesser factors contributed as well to this growing immersion of the Court in political passions. Our Presidents, who were themselves originally intended to be appointees of the electoral college and who, until the rise of Big Government in this century, were not generally terribly important, are now at the center of the vortex of factional passions. Again, the growing importance of mass media reports on the Court, including investigative burrowing that has all but destroyed the privacy of deliberations, has put tremendous pressures on the justices. With few exceptions, justices in the last century were hardly known and were commonly thought of as beetle-browed scholars. Today they are more likely to be celebrities and are sometimes referred to irreverently as “The Brethren” or “The Supremes,” analogies which equate them with either mafioso conspirators or choruses of cacophonous sentimentality. As if the problems of aging were not bad enough, justices today find their pulse rates and prostates in the daily headlines, which is a constant reminder that the journalists and politicians assume them to be political hacks filling political hot seats and casting ideological hot coals at the rest of us.
The mass-mediation of the political maelstrom surrounding the nomination of Judge Bork has been a travesty of the original intent of the constitutionalists and of the entire idea of law and judicial decision-making that is the very foundation of our Constitution. This “political circus” is precisely the kind of embittered factionalism that undermines all rule by law and eventually turns the law and judges into laughingstocks among people of reason. If we Americans seriously intend to become a “banana republic” or a people ruled by the iron tyranny of one party in which constitutions and laws are mere shams to hide political passions and personal corruptions, then we should by all means continue along this path to the politicization of the law and our judges.
But most Americans still believe in the great purposes for which the Constitution was instituted, and we still believe that law and judicious decisions are vital to achieving those purposes. We cannot long tolerate such travesties, even when we do not personally fully approve of those nominated to be our justices. Perhaps we shall eventually manage to depoliticize our nation by returning to restrained government in general, so that government and court appointments will not be matters of life and death. But I doubt that we can wait for that day of deliverance, especially when politicians like Senators Teddy Kennedy and Arlen Specter, and even some scholars like Archibald Cox, tell us that the radical changes produced by sweeping Supreme Court decisions in recent decades cannot be undone because that would constitute politicization of the courts. When judicial conservativism becomes the last bulwark of defense of an already achieved judicial revolution, we are at the Mad Hatter’s tea party, where neither law nor reason reigns and where any political passion is justified.
The political changes of this century, including the direct election of senators and Presidents, have progressively destroyed the buffers of judicial decision-making. What we now see in full force—and so obviously in the “deliberations” of the Senate over Professor Bork’s nomination—is a circus of political factionalism. The decisions on the Supreme Court are now being made by the collusion of special-interest groups and politicians frothing at the microphones for the sake of votes. The political factionalism in some instances is so rank and so obvious that some of the politicians have literally dashed from mob rallies and mass-media presentations to their judicial committee hearings and back again, all in the same day.
Today it is not we the people in the streets who constitute a faction-ridden mob. The vast majority of us have remained calm and judicious. The “impassioned mob” that the constitutionalists so feared is now the politicians themselves, their impassioned special interests, and their journalists hiding behind a mask of objectivity. Indeed, since most of the politicians are themselves lawyers who reject our whole constitutional idea of law and judicial decisionmaking, they have become a rabid countercultural faction attacking the very foundation of our legal institutions and ideas.
There is one simple and obvious way in which we can check their unrestrained political factionalism and restore to our Supreme Court the balance that has been destroyed in this century. We can elect our Supreme Court justices directly, rather than leave their selection up to the professional politicians who do not even share our idea of law and who lie and riot rather than deliberate honest differences.
The election of judges is certainly not a panacea, but neither is it as perilous as proceeding down the path we are now traveling. For better or worse, law and judges are vastly more important to us Americans than they are in any other democracies. We do not have the degree of cultural consensus that most of them have evolved over the eons. We must have a modicum of consensus on our laws and legal proceedings, one that is as sheltered from the whirlwind of selfish political passions as possible. Our history makes it plain that, as Zechariah Chafee Jr. said, the expression of popular will has often destroyed freedom. But that same history also makes it clear that over the long run our popular will is far more protective of our freedoms and of our institutional bulwarks against tyranny than is the will of the political mob in Washington. That, after all, is why the Founding Fathers launched this perilous experiment in constitutional, republican democracy; and why Professor Chafee and almost all other American legal scholars have seen our will as rightly the ultimate authority.
We can extricate our Supreme Court judges from the clash of political passions that now dominates our Senate by electing them directly to their lifetime positions. We can be very sure, in view of recent events, that they will be given careful scrutiny by most of us. We cannot fail to be more judicious in our voting than venial senators. These elections can be held as the occasion of retirement, incapacity, or death demands, which will be less frequent than presidential elections and will rarely coincide with such events that might cloud our considerations. The Supreme Court justices could in turn choose lower court judges, thus insulating them more from unwholesome political passions and ensuring a vast reservoir of judicial talent for eventual election to the highest court. In this way our Supreme Court might become a Board of Legal Directors providing real checks on the power of our Presidents and our legislators.
Law and justice are too important to leave them up to politicians. However perilous our experiment in democratic checks and balances, we now seem to have little recourse but to trust to our own eternal vigilance and our arduous quest for wisdom in selecting leaders of greatest wisdom and justice. As Michael Kammen recently reminded us, “Although the founders differed over many important matters, they shared a belief that the constitutional system created between 1787 and 1791 . . . should be fully comprehensible to the American people.” However able we are at understanding the more technical legal questions of the Constitution, there can be little doubt that we are more capable of understanding and appreciating the qualifications needed in judges than the politicians driven by blind ambition, swept away by greed, groveling for fame, and lusting after power.