Lex Et Ratio . . . Courts and the Culture Wars
| Jurisdiction | United States,Federal |
| Citation | Vol. 2003 No. 03 |
| Publication year | 2003 |
March 2003 - #4. Lex Et Ratio . . . Courts and the Culture Wars
As I write this essay, on the two hundredth anniversary of Chief Justice John Marshall's decision in Marbury v. Madison,1 Congressional Democrats filibuster to block the nomination of Miguel Estrada to a seat on the U.S. Circuit Court of Appeals for the District of Columbia. Today, courts, and the work they do, inspire intense political controversy. Estrada is only the latest target of a process in which decisions about who shall sit on the bench - decisions, one imagines, once made according to standards of legal workmanship - trigger highly charged political debate, filled with rancor, innuendo, and stonewalling.
Because of the politicization of the judicial nomination process, the return of the Republican majority in the United States Senate promises to have a profound effect on the shape of the law in the coming decades. We can expect the numerous vacancies on the federal bench, including potential openings on the Supreme Court, to be filled in short order by nominees chosen because of their adherence to a "conservative" legal philosophy (whatever that may be). A battle over the complexion of our courts, and over the texture of the law enforced in those courts, looms, urged ineluctably onward by an Administration seemingly impatient with the rule of law (domestic or international) in a "time of crisis."
A recent book, edited by Bradley C. S. Watson, takes on the task of examining the role of courts and law in the ongoing, and ever more vigorous, debates about the shape American culture (defined broadly).2 Many of the contributors to the book rank high among those whose views might be expected to have some influence within the Bush Administration. The thinking represented in this book reflects the legal worldview of contemporary conservatism and, as the courts grow increasingly conservative, we can expect the law to take on the contours of that worldview.
The Borkians and the Two Towers
Though highly respected in certain quarters, Robert Bork is a bitter man. Perhaps we can understand his bitterness, though that does not mean it is justified. The bitterness seeps out in his every phrase - bitterness against liberals, against the rampant immorality spawned by the student rebels of the Sixties ("that loathsome decade"), against feminists, against lawyers, and, well, against just about everybody.3 He carries a chip on his shoulder that would put Atlas' burden to shame.
The thesis of Courts and the Culture Wars jibes with themes Bork has been enunciating for more than a decade. We live, the book tells, in a time of culture war. "Two moral visions," says Bork, "are locked in combat and the winner will define what America is to be."4 Shrill and apocalyptic perhaps, but illustrative of the tone of contemporary conservative jurisprudence. Borkians dwell in a Manichean universe, where the good must daily fend off the forces of evil. Harrowed by the impending demise of the good, Borkians simplify all complex thinking into a black-white, either-or rubric. In the culture war, Sauron and Sarumen are winning and a great darkness is descending. Nevertheless, goodness still thrives in a few hearty souls, who must now take up arms against the purveyors of a radical, and radically evil, agenda.
Who are these evildoers that threaten to destroy American civilization? As always in the diatribes of the Right, the devils are uniformly "liberal" members of the intellectual elite. This "class" (Bork's term) includes university and law school professors, journalists, and celebrities. Liberal universities (and their faculty) and the liberal media (including celebrities) form the two towers of evil. A common conceit among contemporary writers, this vision of a threatening intellectual class out to destroy all that is good in our culture forms the background of nearly every position conservatives stake out.
The constant refrain among conservatives about liberal law schools, liberal professors, and the liberal media has always puzzled me. Without question, many people to the left of Robert Bork teach in universities and law schools. But it is simplistic - not to say disingenuous - to describe as "liberal" whole faculties, at a wide range of different institutions, nearly all of which operate as businesses under the guidance of business executives. A number of President Bush's nominees for federal judgeships are, or have been, law professors - and we would rightly hesitate to call noted scholars such as Michael McConnell or Douglas Kmiec liberals.5 The same can be said of the media, some of which is genuinely liberal (such as The New York Times and National Public Radio), and some of which is conservative, especially the most popular print, radio, and television outlets.6
Conservative intellectuals, however, adopt a tone of impending doom that colors much of their view of contemporary law, a view that tends to blame the law and the courts for much that is perceived to be wrong with modern society. Indeed, the term "culture war" itself inflates reality to epic proportions. By their very nature, cultures change, and they do so most often from within, as groups struggle against one another in an effort to define the fundamental features of that culture. To call this process of cultural definition "war" makes it seem both unusual and unduly apt to destroy the culture as a whole. Strident voices may rise on both sides of cultural debates, voices entreating us to view these battles as different in kind from the natural processes of cultural change. But despite the almost mythic place the notion of culture war has in the ideology of the Right, no one has been able to show that the battles over the shape of our culture differ in any significant way from previous battles in this or other cultures.7
The Misshapen First Amendment
Judge Bork, a long-time critic of the Supreme Court's handling of First Amendment issues, has contended that "[t]he First Amendment free speech clause has been made a guarantor of moral chaos, while its religion clauses have been reshaped to banish religious symbolism from public life."8 Conservative constitutionalists focus much of their attack - and some of their most accurate criticism - on the ways in which courts have interpreted the First Amendment in the last half-century.
Bork properly chastises the Court for losing sight of the fact that the First Amendment free speech clause was designed to protect political speech from governmental interference.9 Nothing sacred inheres in the mere act of expressing whatever thoughts or feelings one happens to have at any given moment. Political speech, addressed to important public issues, demands protection as the cornerstone of liberty; mere speech does not. When they ignore the point of the free speech guarantee, courts wander far afield indeed. The expansion of freedom of speech to include ever more forms of expression can be viewed as a response by the courts to changes in American culture spawned by the industrialization and urbanization of American society in the early twentieth century. It can also be understood as an attempt by the courts to meet the demands of an intellectual elite, reflecting not popular desires so much as the urges of a tiny cultural vanguard.10 But whatever the cause, whatever the ways in which it has come about, there can be little doubt that a much wider range of expression, and a much wider range of messages on a much wider range of subjects, received constitutional protection in the latter half of the twentieth century.
Appalled by the increasing immorality of the society around us, and holding the courts responsible for what has been called the "repeal of reticence,"11 contemporary conservatives rightly criticize the expansion of the range of protected non-political speech. Bork cites nude dancing as an example,12 but he could have added the spate of decisions issued by the Court protecting various forms of online pornography against federal statutes designed to keep it out of the hands of children.13 The trouble began, alleges Bork, when Paul Robert Cohen wore his infamous jacket through the courthouse hallway.14 The Court's decision in Cohen, contends Bork, opened "the floodgates . . . to the extreme vulgarization of our society."15 A bit strong, though typical of the sort of analysis that seeks to blame the courts for all that ails us. Still, Cohen and its progeny do smudge the central distinction between expressive behavior and speech.16 "Speech" refers to vocal communication, not all manner of communication; speech is but a subset of expressive behavior. The Constitution applies to "speech," not to the entire universe of expressive forms.17 A woman does not speak when she dances nude in a bar - let alone when she writhes around on the stage floor, genitalia to the fore, under the guise of "exotic dancing" - and so her behavior should not be protected by the First Amendment.
But freedom of expression is a minefield for the unwary, and today's conservatives often misstep. Driven more by preference for particular results than by shared legal principles, contemporary conservatives show, for instance, a willingness to include expressive behavior under the constitutional mantle as long as it is political in nature (unless, of course, it involves crude expressions of unsympathetic political views such as Cohen's). Bork, for example, asserts that the Court, in Nixon v. Shrink Missouri Government PAC, 18 diminished political speech by upholding campaign contribution limits. Campaign contributions, however, especially of the sort limited by the Missouri statute at issue in Nixon, seem even less speech-like than donning Cohen's jacket for a stroll through the courthouse. People do not speak when they spend their...
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