Robert Bork (1927–2012)

Sigrid Estrada/AEI

  • Title:

    The Tempting of America
  • Hardcover ISBN:

    1856190323
  • Hardcover Dimensions:

    8.44'' x 5.48''
  • 430 Hardcover pages

Article Highlights

  • Robert Bork's The Tempting of America is one of the most important popular statements of judicial conservatism.

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  • Any account of political polarization in our time has to mention the Bork hearings and the bitter confirmation wars.

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  • The Senate's rejection of Bork was a low point in a long history of conservative failure in judicial politics.

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A group of younger aides in the U.S. Capitol invited me to speak a few months ago about a classic conservative book. I chose Judge Robert Bork's The Tempting of America (1989), which is really several books in one: a defense and elaboration of originalism and a critique of other schools of jurisprudence; an account of his bitter confirmation hearings; and a history of U.S. constitutional law from an originalist viewpoint.

With the possible exception of the corpus of Justice Antonin Scalia's work, the book is the most important popular statement of judicial conservatism yet produced. The autobiographical portions of the book are also important as political history. Any account of political polarization in our time has to mention the Bork hearings, and the bitter confirmation wars that they began.

The Senate's rejection of Bork was a low point in a long history of conservative failure in judicial politics. From the 1960s onward politicians allied to conservatives had won office pledging to arrest or roll back liberal activism on the court. Yet Richard Nixon and Gerald Ford's appointees had not been, or in some cases remained, especially conservative and Ronald Reagan's first appointee, Sandra Day O'Connor, had proved disappointing to conservatives.

The Bork nomination took place at roughly the midpoint of a 34-year period, bookended by the confirmations of William Rehnquist and John Roberts, in which no conservative made it onto the Supreme Court without benefiting from identity politics. (Antonin Scalia, the first Italian-American justice, was confirmed on a 98-0 vote, with the support of New York's liberal Democratic governor Mario Cuomo; black support for Clarence Thomas made it impossible for Southern Democratic senators to oppose him as they had Bork.)

The Bork debacle set back the cause of constitutionalism on the Court by a generation. His book can nonetheless be said to have begun its recovery. It was the fair hearing that Bork and his ideas never received from the Senate. One mark of the book's influence is how familiar many of these ideas now seem.

The Tempting of America helped to establish, for example, that in determining the binding meaning of a legal provision, it was the original understanding of the informed public of the time, and not the subjective intentions of the drafters, that counted. That view has become dominant among originalists, even if some critics of originalism remain oblivious to the distinction.

Bork trained his fire on what Notre Dame law professor Gerard Bradley has called "indeductivism" in constitutional interpretation. A judge using this method notices that several provisions of the Constitution protect privacy: the 3rd Amendment, for example, which prohibits the quartering of troops with unwilling homeowners unless authorized by law. Having moved up a level of abstraction from quartering and the other provisions to "privacy," he then moves down again to declare that the Constitution therefore protects a right to contraception or abortion. Or: Justice William Brennan notes that the Constitution seeks to protect human dignity in various ways; he concludes that it therefore forbids capital punishment.

Bork's point in citing Brennan was that it is obviously the case that a variety of policies are arguably compatible with or protective of dignity, and much of politics consists of elaborating on that "arguably." He insisted throughout Tempting that the task of a conscientious legislator must be different from that of a conscientious judge, and that the liberal habit of reducing the Constitution to "majestic generalities" obliterates that difference.

Bork made his case clearly, mostly fairly, and often wittily. Of a Planned Parenthood newspaper ad against his confirmation, he wrote, "From the charges made, a reader might reasonably have concluded that I wanted to sterilize the American people and then follow them into their bedrooms anyway to make sure they did not use contraceptives."


* * *


The views advocated in Tempting have run into two major types of criticism on the Right. Libertarians have attacked what they view as Bork's majoritarianism, and it is surely true that his jurisprudence would leave voters and legislatures freer to pass the laws they choose than libertarians would like. Libertarians' criticism of Borkean jurisprudence, though, often goes beyond this dispute.

Some of them have placed the Ninth Amendment at the center of their theories of a libertarian Constitution, and they denounce Bork's famous "inkblot" theory of the Ninth Amendment, which dismissed it as incomprehensible. That critique is misplaced: Bork never adopted the theory so often attributed to him. He didn't, that is, say that the Ninth Amendment had no ascertainable meaning or that constitutional interpretation should ignore it. The point of the ink blot comments in his confirmation testimony and in Tempting was that judges should not apply any constitutional provision whose meaning was unverified-which is surely correct.

Another line of criticism treats Bork as a moral relativist. He was surely no such thing but sometimes deployed incautious rhetoric that created that impression. In countering calls for judges to make rulings based on the moral truth about, for example, what rights people have that governments may not legitimately curtail, Bork could lean too heavily on the retort, who's to say what moral truth is? His later work, in which he regretted the Declaration of Independence for loosing the abstraction of equality on a world of theorists, reinforced the impression of relativism.

In Tempting, though, he makes a better version of the argument: that judges have no greater understanding of moral truth than anyone else, and must apply written law as it is rather than as they wish it might be. He did not, in Tempting, fill in one final step of the argument that might have forestalled confusion: that in almost all circumstances judges have a moral obligation, discoverable by reason, to follow the law. That this view undergirded his originalism, however, cannot be doubted.

None of this is to deny that the originalism defended in Tempting has real weaknesses. These can perhaps best be seen in its treatment of the equal protection clause, which remains influential among conservatives. Bork believes that it authorizes judges to strike down laws that violate a principle of equality, but he wants to cabin this principle lest judges start making moral judgments left and right. He winds up suggesting that judges interpret the clause in light of its "primary purpose" of protecting blacks from racial discrimination, even though the text was written, surely deliberately, at a higher level of generality than that.

Bork's heirs have argued in this vein that the clause does not create a right to same-sex marriage because it is meant to block discrimination on the basis of race rather than sex or sexual orientation. Yet that cannot be a sound argument: A state that excluded gays from the protection of its homicide laws would surely be in violation of the clause.

Bork does not consider one possibility suggested by the terms of the clause: that its purpose was to require states to extend the legal protections against theft, murder, and so forth to all persons: a limited provision but one that if enforced would have had momentous consequences for a large portion of our history. Nor does Bork consider the possibility that the clause, and the amendment as a whole, was meant to confer power to Congress (given the power to "enforce" it in its closing section) rather than the federal judiciary. To the extent the subject comes up, Bork asserts the conventional view that the Court determines what the amendment means and Congress can make laws consistent with it.


* * *


Tempting is less concerned than conservatives have subsequently been about judicial supremacy: the Court's monopoly, claimed by itself and accepted by the other branches and the political culture, over authoritative constitutional interpretation. In later years Bork himself would toy with the idea of abolishing judicial review by constitutional amendment, but he did not see any way of correcting judicial supremacy using the resources of the unamended Constitution. He saw that supremacy as the result of a flaw in its design, which is to say that he continued to read it in a supremacist way.

Other limitations of Tempting should be seen as invitations to further work. What principles should an originalist use to determine which precedents that departed from an originalist understanding of the Constitution should be followed? What sorts of evidence should count in determining the original understanding? Should legislative history, for example, count at all, as Justice Scalia famously denies? How much weight should government practices soon after ratification be given in determining constitutional meaning? Bork does not give thorough answers to these questions, which later originalists have taken up fruitfully.

Conservatives have also learned from the personal history that Bork recounts. Chiefly what they have learned is that confirmation hearings are not a seminar: answers should be kept as narrow and innocuous as possible, and would-be nominees should not amass a record of public writing that gives opposition-party senators ammunition to use against them. Bork was taken to deny that the Constitution protects a "right to privacy," although he does not say that in Tempting: rather he affirms that the Constitution protects privacy in many ways, but denies that the Court can extend its privacy protections, indeductively, to include a right to abortion. During their own hearings Chief Justice Roberts and Justice Sam Alito placed a lot of stress on that first point and were silent on the second. Their opponents had less to work with.

The conservative grassroots was inert during the Bork hearings, in part because no similar ideological campaign against a nominee had ever been waged. In reaction to his rejection, and to his own post-hearing writings, conservatives became more attentive to judicial politics. Bork's book, like Scalia's dissents, began to demystify the Supreme Court for conservatives: to open their eyes to the truth that as the decades have gone by the Court's exegeses of the Constitution have less and less amounted to a good-faith interpretation of it.

I was once on a panel before a large gathering of conservatives when someone suggested that the books and articles Bork had written after 1987 were more valuable than his opinions on the Court would have been. I replied that as high an opinion as I had of them, I could not agree: the Senate's rejection of Bork was a constitutional catastrophe from which we have hardly begun to recover. Judge Bork and his wife Mary Ellen were in the audience, and afterward thanked me for what I had said; but it was the plain truth.

 

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Ramesh
Ponnuru

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