Occasionally, I like to pass on materials that I am using for my courses. This excerpt examines the problem of judges (both liberal and conservative) who believe that their ideology, rather than Constitution, is the Supreme Law of the land (a la Seigel and Spaeth's Attitudinal Model of Supreme Court decisionmaking). As Bork notes, both conservative and liberal judges have been guilty.
JUDGES USING THEIR IDEOLOGY TO DECIDE CASES:
The excerpts below are from a 1990 book for Robert Bork, a strident conservative whose nomination to the Supreme Court was defeated by the Senate. Although Bork’s primary target is the political Left (liberals), he recognizes that conservatives have been guilty in the past and would probably commit the same offenses if they had the power. Many liberal critics of the Roberts Courts conservative decisions would probably make similar allegations against the conservative Justices currently on the Supreme Court. Although I agree with Bork, the validity of Bork and these critics arguments are for you to decide. IMHO, the Roberts Court has been less guilty than most Supreme Courts since at least the 1920’s. The Warren Court was, less guilty than many assume.
Excerpts from The Tempting of America by Robert Bork, New York: The Free Press, 1990, pp1-12 (underlining and [ ] by instructor)
“In the past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, to capture and use it foe politics’ own purposes, while the second subject—law, religion, literature, economics, science, journalism, or whatever—struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the Intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the “correct” political outcome. [In this writer’s opinion, many in the social sciences, including those in the fields of Criminology and Criminal Justice, have given into the “temptation.”]
The process by which this is accomplished may vary from field to field, from universities to media to courts. In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statue or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislature should. The American people are tempted as well. Many of the results seem good, and they are told that the choice is between a cold, impersonal logic, on the one hand, and, on the other hand, morality and compassion. This has always been the song of the tempter, and now it is heard incessantly from those who would politicize the courts and the Constitution, as a necessary stage in the politicization of the culture at large. . . .
Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.
This strategy, however, contains the seeds of its own destruction. Since the politicization of the law has, for half a century, moved results steadily to the left, a very large number of Americans do not like those outcomes. Increasingly, they are not deceived by the claim that those results are compelled by the actual Constitution. This perception delegitimizes the law in their eyes. There are signs that law may be at a tipping stage in the public perception of its legitimacy. Americans increasingly view the courts, and particularly the Supreme Court, as political rather than legal institutions. Perhaps a lesson may be learned from another great institution: the press. The political coloration of news reporting is easier for the public to see than is that of judicial decision-making, and, as the press has in fact become more political, it has lost legitimacy with large sections of that public. Something of the same thing may be happening to law, more slowly but perhaps as inexorably. Conservatives, who now, by and large, want neutral judges, may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have destroyed a great and essential institution. . . .
In the clash of law and politics, the integrity of the law has already been seriously undermined and the quality of its future remains very much in doubt. . . .When the Supreme Court invokes the constitution, whether legitimately or not, as to that issue the democratic process is at an end. . . .
[In Washington, D.C.] . . . demonstrators march past the Houses of Congress with hardly a glance and go straight to the Supreme Court building to make their moral sentiments known where they perceive those sentiments to be relevant. The demonstrators on both sides believe the issue to be moral, not legal. So far as they are concerned, however, the primary political branch of government, to which they must address their petitions, is the Supreme Court. . . .
The judiciary’s great office is to preserve the constitutional design. It does this not only by confining Congress and the President to the powers granted them by the Constitution and seeing that the powers granted are not used to invade the freedoms guaranteed by the Bill of Rights, but also, and equally important, by ensuring that the democratic authority of the people is maintained in the full scope given by the constitution. . . .
But if judges are, as they must be to perform their vital role, unelected, unaccountable, and unrepresentative, who is to protect us from the power of the judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or statue. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. . . .
No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the actual Constitution or the legislative opinion of the American public. That, surely, is the point of their efforts. . . .
There is a story that two of the greatest figures in our law, Justice Holmes and judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “that is not my job. It is my job to apply the law.” . . .
The heresy described is not peculiar to any political outlook. When it has suited their purpose, conservatives as well as liberals have surrendered to its temptation. Given the chance, no doubt many conservatives would be delighted to succumb again. If I address the failings of liberals more than those of conservatives, it is only because liberalism or ultraliberalism is currently in the ascendancy in constitutional theory and practice.
The orthodoxy of original understanding, and the political neutrality of judging it requires, are anathema to a liberal culture that for fifty years has won a succession of political victories from the courts and that hopes for more political victories in the future. The representatives of that culture hate the American orthodoxy because they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be reelected, will enact. That is why these partisans want judges who will win their victories for them by altering the Constitution. . . .
Those who now dominate public discourse on these matters recognize that, if the Constitution is the law, departures from the principles the ratifiers understood themselves to be enacting are illegitimate. Yet such departures are essential if the results desired by the liberal culture are to be achieved through the courts. It follows that the Constitution cannot be law. Thus, the morality and politics of the intellectual or knowledge class, a class that extends well beyond the universities, can be made into constitutional law. The class I describe is not necessarily composed of people who are good at intellectual work. They are defined as a class because of their work, however adroitly or maladroitly, with words and ideas. For reasons that will be discussed, they tend to have values antagonistic to a traditional, bourgeois society. It is not much to say that these people see the Constitution as a weapon in a class struggle about social and political values.
Judges are by definition members of the intellectual class and, in addition, for professional and personal reasons, tend to be influenced by the culture of the law schools. Like most people, judges tend to accept the assumptions of the culture that surrounds them, often without fully understanding the foundations of those assumptions or their implications. . . .
Though the Court once legislated results that may be called conservative (which was also an illegitimate judicial role), rarely, if ever, in the past fifty years has it done so. . . .
When Courts are viewed as political bodies, we may expect judicial confirmations that are increasingly bitter. We may also expect a constitutional law that lurches suddenly in one direction or another as one faction or another gains the upper hand, a constitutional law that is seen as too crucial a political weapon to be left to nonpolitical judges, and certainly too important to be left to the actual Constitution. . . .
It is the enterprise of the large majority of this intelligentsia to justify the political behavior of the Court in the past and to provide theories that will draw the Court ever farther along the path of left-liberal Constitution rewriting."