Was Bork right about judges?

• Author: Griffith, Thomas B.
• Position: Yale Law School professor and lawyer Robert Bork - Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

The American public first met Robert Bork during the 1987 Senate Judiciary Committee hearing that considered his nomination to the Supreme Court. Compared with more recent judicial confirmations, the Bork hearing was highly dramatic. Most are aware of its outcome, which led to an addition to the English language: "bork"--meaning to "[d]efame or vilify (a person) ... esp[ecially] with the aim of making it difficult for him or her to hold public office." (1) Few are familiar, however, with Judge Bork's distinguished career before that contentious and transformative hearing.

Robert Bork had been a tenured professor at Yale Law School, authored a watershed book that shifted the paradigm of antitrust law and helped make possible our comfortable standard of living, (2) served as Solicitor General of the United States, and worked as a federal appellate judge on the D.C. Circuit, the court on which I now sit. I am reminded of Judge Bork's legacy every time I don my robe. My locker in the robing room is across a narrow aisle from his, which is marked by a brass plate that bears his name. Once robed, I enter a courtroom in which his portrait--a Rembrandt-like rendition of the Judge in which he appears broodingly omnipresent--hangs. He is watching, and that is fine by me.

I first became aware of Robert Bork during my first year of law school. I remember the moment when I pulled Volume 47 of the Indiana Law Journal from a shelf in the library at the University of Virginia and began reading his classic article, Neutral Principles and Some First Amendment Problems. (3) I do not want to make too much of the moment. No heavenly choir or rushing wind accompanied my reading, but I found Judge Bork's approach to the Constitution, and more particularly to the role of judges in our democratic republic, immensely satisfying.

Consider a quick summary of Judge Bork's views, cobbled together from his writings with some editorial license on my part:

The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do ... some areas of life in which the individual must be free of majority rule. (4) In these latter areas, majorities cannot rule, "no matter how democratically [they] decide[] to do [so]. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny." (5) The structure of the Constitution places the all-important "function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary." (6) Placing this function with the courts creates "the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic." (7) For that reason, "[i]t is as important to freedom to confine the judiciary's power to its proper scope as it is to confine that of the President, Congress, or state and local governments. Indeed, it is probably more important, for only courts may not be called to account by the public." (8)

In Judge Bork's view, courts will not confine themselves to their proper (nonpolitical) role as guardians of the delicate balance between majority rule and individual liberty unless they have a firm understanding of the proper scope of judicial power under the Constitution. (9) Here, Judge Bork relies on the seminal article by Professor Herbert Wechsler, Toward Neutral Principles of Constitutional Law,m originally delivered as the 1959 Oliver Wendell Holmes Lecture at the Harvard Law School. According to Wechsler, "the deepest problem of our constitutionalism" is laid bare when courts function as a "naked power organ." (11) This problem occurs when a judge, who is supposed to apply the law, "lets his judgment turn on the immediate result" (12)--that is, whether the outcome advances a cause he personally favors as a citizen. To avoid this problem, Wechsler insists that judges must resolve the cases before them according to "neutral principles--by standards that transcend the case at hand." (13)

But what is wrong with a results-oriented approach? Why should I, having long embraced political conservatism and having been active as a Republican for much of my adult life before I was appointed to the court, not use my position as a federal judge to advance those outcomes I believe would best promote the common good? The reason, Bork tells us, is that doing so would undermine the very constitutional structure I have sworn by oath to uphold and defend.

[T]he Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority (54) Rather than impose their own value determinations in every case, judges must derive, define, and apply generally applicable neutral principles gleaned from authoritative legal texts. (15) In short, according to Judge Bork, the structure of the Constitution, which places the lawmaking function with We the People, through elected representatives, demands that judges be neutral.

Judge Bork's approach is a fundamental tenet of mainstream conservative thought regarding the role of a judge, but it is also a view held by many who are not political conservatives. For example, this charge to judges came from Justice Thurgood Marshall:

We must never forget that the only real source of power that we, as judges, can tap is the respect of the people. We will command that respect only as long as we strive for neutrality. If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the...