The Law According to Bork

As a gift when Robert Bork was named Solicitor General, his Yale law students gave him a construction worker’s hard hat with his new title on it. That was , in 1973, when a hard hat still symbolized the bareknuckle school of conservatism. Bork’s own methods of persuasion are a good deal less belligerent, but the joke was to the point. He had built his reputation as a legal hard-liner, both for his narrow reading of the Constitution and for the conservative results of such analysis. When he moved later into the offices of a federal judge, he brought the hard hat with him.

Now that he has a chance to hang it in the chambers of the Supreme Court, a fight has been raging over just what kind of constitutional construction Bork would practice there. His writings and public statements, plentiful and forcefully expressed, make clear his scorn for many of the court’s landmark decisions; they are less clear about which of those he would actually seek to overturn. Despite the instances where Bork has stepped back from earlier positions, and the ambiguity of some of his appeals court rulings, one thing is clear from his 25 years of unflinching and outspoken legal advocacy: he is not the mainstream legal thinker that the White House is now painting him to be.

Bork’s special scorn has been reserved for the court’s expansions of individual and civil rights in the past four decades. Among the decisions that Bork has blasted as groundless and unconstitutional: a seminal 1948 decision, Shelley v. Kraemer, that denied state courts the authority to enforce racially restrictive agreements between sellers and buyers; Griswold v. Connecticut, which in 1965 struck down a state law forbidding the use of contraceptives even by married couples; the 1973 Roe v. Wade ruling that extended the right of privacy to protect abortion; and the 1978 Bakke v. University of California decision that permitted affirmative action, though it disallowed strict racial quotas.

Those rulings have reshaped American life — which is precisely Bork’s complaint. He accuses the recent court of liberal “judicial activism,” using its power to accomplish social goals that have eluded — or been opposed by — legislatures. His own philosophy, he claims, is based on fealty to “neutral principles,” the notion that judges should not formulate their legal principles based on the outcome they will produce in the particular case being heard. And yet, as his opponents point out, Bork’s record makes him appear to be result-oriented in his own way: in almost all of the court rulings in which he diverged from his colleagues on the bench, the principles he applied led to a conservative decision.

A related theme is his advocacy of “judicial restraint,” the idea that judges should defer to legislative and Executive decisions. Unless a clear constitutional right is violated, he believes, the majority through its elected officials may impose its will on the minority, even if judges consider the resulting laws to be insidious or unwise. For example, though Bork has argued that the court did not have the constitutional justification to strike down the anticontraceptive law in the Griswold case, he has spoken disparagingly of the statute itself. “Even if we assume that courts have superior capacities for dealing with matters of principle,” he writes, “it does not follow that courts have the right to impose more principle upon us than our elected representatives give us.”

From that premise flows Bork’s belief that constitutional questions should be decided on the basis of the “original intent” of the framers. Judges should avoid creating new rights or notions, like “privacy” or “fairness,” that the framers did not deposit there. Yet the Founding Fathers foresaw the possibility that the Bill of Rights might leave the impression that citizens possessed only those liberties specifically mentioned there. For that reason they provided a catchall in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neglected for almost two centuries, that language was seized by the court in the mid-1960s as one basis for its more expansive readings.

Bork has acknowledged that the precise (and sometimes imprecise) language of the Constitution cannot always be treated as the last word on its meaning. New conditions arise that may require the application of constitutional principles in ways the framers did not foresee. But he insists that the role of judges is to identify the “core values” that are contained in the text and history of specific constitutional provisions, and then to apply these as present-day situations warrant.

That is not very different from the method of more wide-ranging judges and scholars. Where Bork and his critics diverge sharply is on the question of how broadly to define those values and what measures the court may employ to implement them. Bork’s views on some major questions of constitutional interpretation:

Equal protection. A central instrument of court power has been the 14th & Amendment. Though drafted in the post-Civil War era chiefly to ensure just treatment for blacks, it extends its guarantees of due process and equal protection under the law to “any person,” allowing the court to invoke it to cover women, aliens, illegitimate children and sometimes the poor. Bork defends the landmark Brown v. Board of Education school desegregation case on the ground that the intent of the 14th Amendment contains the “core” idea of protecting blacks from government discrimination. But he finds no similar intent to protect women. That could exclude them, for example, from affirmative action programs.

Even in clear-cut racial cases, Bork hesitates to wield the equal protection clause when it conflicts with majority wishes. He has criticized the court for striking down a provision added by referendum to the California state constitution that would have allowed discrimination in the sale or leasing of property.

Freedom of speech and the press. Some of Bork’s most radical rethinking has concerned the First Amendment guarantees of free speech. In his famous 1971 law review article, he argued that the Constitution protected only “political” speech, thereby shutting out “any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.” More recently Bork has recanted some of that position, concluding that “many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection.” But in a conversation with Journalist Bill Moyers televised earlier this year, Bork still hesitated to put art firmly beneath the constitutional umbrella. “I think you’re getting toward the outer edge there,” he told Moyers.

Bork has also said the First Amendment extends no protection to “speech that advocates . . . the violation of any law,” a position at odds with the oft-invoked standard of Oliver Wendell Holmes that only speech posing a “clear and present danger” may be suppressed. Had Bork’s view been accepted in the early days of the civil rights movement, it could have been used to prohibit many calls for peaceful civil disobedience.

Bork’s major statement in the free press area came in a 1984 ruling in which he concurred in the dismissal of a libel suit brought by Bertell Ollman, a Marxist college professor, against the conservative columnists Evans and Novak. In language that went beyond Supreme Court decisions on the matter (and which provoked a sharp rebuttal joined by his then colleague Antonin Scalia), Bork wrote that a “remarkable upsurge” in libel suits and damage awards “has threatened to impose a self-censorship on the press” as effective as government censorship. Because the core value of a free press is clearly part of the original intent of the First Amendment, he argues, judges in this instance can play an activist role — though he rarely advocates that role in most matters pertaining to the core value of racial equality.

Privacy. The “right of privacy” that the court enunciated in the Griswold contraception ruling, and that Bork has frequently disparaged, restrains government intrusion in matters bearing upon marriage, sexual activity and family life. In addition to providing a rationale for the court’s pro-abortion decision, privacy has been invoked in arguments favoring gay rights. In a 1984 ruling that upheld the Navy’s discharge of a petty officer for homosexual conduct, Bork aired the view that whatever the Supreme Court may have meant by privacy, it did not cover homosexual relations. Last year, a 5-to-4 court majority joined by Justice Powell also rejected the idea of a constitutional right to homosexual conduct.

Access to the courts. As an appeals judge, Bork also took a narrow view of the right of plaintiffs to bring their cases before the court. Accordingly, he voted to dismiss suits brought by veterans, the homeless, the handicapped and consumer groups. Opponents point out that he has rarely ruled this way against business plaintiffs. In one widely noted case, he also dissented when his colleagues upheld the right of a bipartisan group of Senators and Representatives to bring suit in opposition to President Reagan’s use of a pocket veto. Bork went so far there as to assert that courts should “renounce outright the whole notion of congressional standing.”

Antitrust. Bork has had formidable influence in the field of antitrust, his legal specialty. His view that Congress, which entered the fray with the 1890 Sherman Act, intended to prohibit only those mergers that discourage “economic efficiency” has many followers in the antitrust division of the Reagan Justice Department. Bork finds fault with most of the subsequent attempts by Congress to define anticompetitive practices and to interfere with vertical mergers. Deferential to legislatures in most constitutional disputes, Bork becomes positively Swiftian in his gloom about their capabilities in the economic field: “Congress as a whole is institutionally incapable of the sustained, rigorous and consistent thought that the fashioning of a rational antitrust policy requires.”

A recent study by Ralph Nader’s Public Citizen Litigation Group claims that in most split decisions on the appeals bench, Bork favored businesses when they brought suit against the government but favored government when the plaintiff was an individual or public interest group. That raises the question of whether the principles he invokes are always “neutral.” It takes a strong man never to put his intellect at the disposal of his convictions.

Certainly not all of Bork’s rulings come out conservative. He authored an opinion for a three-member panel that ordered the Washington, D.C., transit authority to allow an artist to rent display space in subway stations for a poster critical of Reagan. But have his principles sometimes shifted to serve his ideological preferences? In attacking a proposed civil rights law in 1963, he wrote that it would be regrettable if “justifiable abhorrence of racial discrimination ((should)) result in legislation by which the morals of the majority are self-righteously imposed upon a minority.”

He later retracted his criticisms of the civil rights law. By 1984, however, he had gone on to embrace the opposite position concerning the broader question of public morality. In a speech before the conservative American Enterprise Institute that touched upon public obscenity, he declared, “One of the freedoms, the major freedom, of our kind of society is the freedom to choose to have a public morality.” Bork’s supporters say that turnaround shows his willingness to evolve philosophically. Opponents say it is the intellectual expediency of a man more provoked by the sight of obscene words than by signs reading WHITES ONLY.

If he joins the high court, the sharp-edged axioms of Bork the scholar might be tempered by the tradition of stare decisis (standing by what has been decided), the judicial practice of reaching decisions that accord with earlier rulings. He disagrees, for instance, with the “commerce clause” decisions of the New Deal court — a series of rulings that upheld the power of the Federal Government to regulate business in many fields. But he maintains that he would not seek to overturn them because they form the basis for many subsequent court decisions and administrative practices. Would he likewise defer to other ! past rulings, notably the abortion decision? Bork declines to say.

So the Senate will have to judge him on the basis of his record and writings, assuming that if he acts on his beliefs, in many decisions he will vote to radically reverse decades of judicial activism in expanding the concepts of constitutional rights. One irony is that he faces strong opposition from legislators who are disturbed by the prospect that the high court might show more deference to legislatures on political decisions. Another is that his own fate now depends on one of those decisions.