What Robert Bork Learned from Judicial Activism, Right and Left

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”

Certain libertarians who favor a more emphatic judicial approach now criticize Bork, once revered in center-right legal circles. For advocating judicial restraint, Bork has been labeled as a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” and a “majoritarian.” These criticisms ultimately parallel those of left-liberals: Bork’s advocacy of original intent and judicial restraint denies them the license to shape the Constitution according to a preferred ideological template, which, in this case, means libertarianism. Bork’s unforgivable sin was pointing out that republican self-government “means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”[1]

These negative assessments of Bork are particularly ironic in light of the fact that Bork revolutionized antitrust law by infusing the topic with economic analysis, culminating with his 1978 treatise The Antitrust Paradox. Moreover, during the 1960s, while many of his colleagues at Yale Law School were striking fashionable leftist poses, the free-thinking Bork was exploring libertarian themes. Unlike many current legal scholars, while at Yale (1962-1975, 1977-1981), Bork wrote for both academic audiences and in lay publications such as the New Republic and Fortune, exhibiting a flair for controversy and becoming an early exemplar of what we now call a “public intellectual.”

Perhaps owing to his Chicago School education (undergrad and law school), Bork initially displayed a strong free market orientation in constitutional matters, such as a 1963 essay in The New Republic challenging the wisdom of proposed civil rights legislation on the grounds that it would restrict private individuals’ (and business owners’) freedom of association.  Bork described the proposed ban on discrimination by businesses as “a loss in a vital area of personal liberty.” Just imagine a Yale law professor expressing such views today! Tempora mutantur.

In a 1968 Fortune article, Bork expressed sympathy for the Supreme Court’s recognition of “fundamental” natural rights not listed in the Constitution, under the rubric of the Ninth Amendment, which he believed could be read to preserve individual rights not expressly set forth in the Constitution. The Ninth Amendment, Bork averred, “seems to mean that the Bill of Rights is an incomplete, open-ended document.” In fact, Bork described liberal Justice Arthur Goldberg’s concurring opinion in Griswold v. Connecticut (1965)—adopting this theory—as “persuasively argued.” Bork suggested that “the idea of deriving new rights,” even “individual freedoms far beyond the text of the Constitution,” was “valid and valuable.” In the interest of consistency, however, Bork proposed that the Griswold approach be extended to restore protection for long-forgotten economic freedoms, rejecting the Court’s post-New Deal distinction between “personal” and “economic” rights. In other words, decades before the “libertarian legal movement” was hatched, Bork was exploring all of its themes, including the demotion of economic liberties in United States v. Carolene Products (1938).

Bork’s embrace of “unenumerated” constitutional rights—individual liberties not expressly set forth in the text of the Constitution—in these nascent articles now seems odd because he later vehemently condemned the notion as anathema. As befits a searching intellect, Bork’s thinking continued to develop while teaching at Yale, leading him to change his mind.

During the mid-1960s, Bork co-taught a popular constitutional law seminar at Yale with Alexander Bickel, his closest friend on the faculty and the New Republic’s legal editor. Although Bickel, who died tragically of cancer at the age of 49 in 1974, is often described as a liberal, in contemporary parlance he would qualify as a centrist—or even a Burkean conservative—due to his criticism of the Warren Court’s activist excesses. Bickel’s classic 1962 book, The Least Dangerous Branch, introduced the term “counter-majoritarian difficulty” to describe the tension between judicial review and democratic theory. Ideological fault lines have steadily shifted over the past century, but Bickel’s unease with untrammeled judicial discretion lingers. As a result of long, animated debates between Bickel and Bork, by the end of the decade Bork had reconsidered his more free-wheeling judicial views and embraced a more restrained role for the judiciary.

Under Bickel’s influence, Bork eventually abandoned his support for unenumerated rights and embraced the constitutional theory that became known as “originalism”: The Constitution should be strictly interpreted, in accordance with its original meaning (usually determined by its express text), not as a conduit for a judge’s subjective sense of the values thought to be lurking between the lines. Bork would renounce the concept of natural rights in constitutional decision-making and disclaim Goldberg’s interpretation of the Ninth Amendment. In Bork’s memorable words (from the 1982 NR article referred to earlier): “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

In 1971, Bork delivered a lecture at the Indiana University law school, entitled “Neutral Principles and Some First Amendment Problems,” which was later published in the Indiana Law Journal.  Bork’s essay—ranked as the 10th most-cited law review article of all time—became the foundation for the constitutional philosophy he would espouse for the rest of his life. While ostensibly addressing the First Amendment, Bork digressed to unsparingly criticize Griswold for recognizing an unwritten right to “sexual privacy” for married couples wishing to use contraceptives banned by state law. While conceding that Griswold “has been acclaimed by legal scholars as a major advance in constitutional law,” Bork condemned its reasoning as unprincipled, unsupported in the text and history of the Constitution, and therefore illegitimate.

Bork insisted that the Court’s rulings must rest on express provisions of the Constitution, not ephemeral (and unavoidably subjective) notions of “fundamental rights,” which merely reflect the judges’ own values. Foreshadowing themes that would animate conservative legal theory for decades to come, Bork insisted that “Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.”

Bork’s rejection of Griswold—which was the precursor of abortion rights in the Court’s 1973 decision in Roe v. Wade—represented a decisive break with Bork’s early flirtation with unenumerated rights. Bork’s constitutional epiphany was total: he repudiated all judge-made concoctions of rights—sometimes denominated “substantive due process”—including Griswold and all its antecedents, even the long-forgotten economic liberties he had yearned for in his 1968 Fortune article. Bork confessed that he was in “political agreement” with some of the Lochner line of cases, but concluded that—in the absence of an express constitutional right—“there is no justification for the Court’s methods.” In his 1971 Indiana Law Journal article, Bork candidly acknowledged his prior views, recanted them as “quite erroneous[],” and never looked back. “The judge must stick close to the text and the history [of the Constitution], and their fair implications, and not construct new rights,” Bork warned.

Then, as now, he was right.

[1] Robert Bork, The Tempting of America: The Political Seduction of the Law (Touchstone: 1990), p. 139.