When judicial activists switched sides: deference to elected majorities was a Progressive ideal long before modern conservatives picked up the baton.

• Author: Root, Damon
• Position: Culture and Reviews - Essay

ON JULY 1, 1987, PRESIDENT RONALD Reagan introduced the American people to the man he had selected to replace retiring Justice Lewis Powell on the U.S. Supreme Court. Robert Bork "is recognized as a premier constitutional authority," Reagan announced, with the nominee standing by his side. A former solicitor general of the United States, a distinguished former professor of law at Yale University, and a sitting judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, Bork did indeed come well qualified for the position. Furthermore, Reagan continued, Bork is "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint," the idea that judges should defer to the will of the majority and refrain from striking down most democratically enacted laws. As a justice, Reagan concluded, Robert Bork "will bring credit to the Court and his colleagues, as well as to his country and the Constitution."

Less than an hour later, Sen. Edward Kennedy of Massachusetts, a prominent liberal Democrat, took to the floor of the Senate to offer a very different take on Reagan's pick. "Robert Bork's America," Kennedy declared, "is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters ... and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy."

The basic script for Bork's confirmation process had been set. Following Reagan's lead, Bork's supporters characterized him as the heir to a long and noble tradition rooted in the judicial deference favored by turn-of-the-century Progressives. "I would ask the committee and the American people to take the time to understand Judge Bork's approach to the Constitution," said Republican Sen. Bob Dole of Kansas. "That approach is based on 'judicial restraint' ... Now, Judge Bork did not invent this concept," Dole continued. "It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes."

Dole picked a good example. Appointed in 1902, Justice Oliver Wendell Holmes was one of the Supreme Court's earliest and most influential advocates of judicial deference. "A law should be called good if it reflects the will of the dominant forces of the community," Holmes once declared, "even if it will take us to hell."

Bork's Democratic opponents, meanwhile, followed Kennedy's example and zeroed in on the ways that Bork's jurisprudence threatened to upset the political balance. "As I understand what you have said in the last 30 minutes," said Judiciary Committee Chairman Joseph Biden (D-Del.), who was then questioning Bork about whether the Constitution secured a right to privacy, "a State legislative body, a government, can, if it so chose, pass a law saying married couples cannot use birth control devices."

Bork would object to that characterization of his views, but there was no denying that Biden had a point. If the Supreme Court had followed Bork's deferential approach to legislative determinations in the 1965 case of Griswold v. Connecticut, it never would have invalidated that state's ban on the use of birth control devices by married couples. Similarly, if the Court had followed Bork's approach eight years later in Roe v. Wade, Texas' anti-abortion restriction would still be on the books.

But Bork's supporters also had a point. Reagan and Dole were right: Bork was a principled advocate of judicial minimalism. He not only opposed what he saw as the Court's liberal activism in Griswold and Roe but also rejected what he saw as the conservative activism of Lochnerv. New York, the famous 1905 case in which the Supreme Court struck down a state restriction on economic liberty (over the dissent of Justice Holmes). Indeed, during his confirmation hearings, Bork took pains to remind his interrogators "that there was a time when the word liberty in the 14th Amendment was used by judges to strike down [Progressive] legislation." Those conservative and libertarian judges, Bork argued, "were wrong because they were using a concept to reach results they liked, and the concept did not confine them, and they should not have been using that concept."

It was a sentiment worthy of Justice Holmes himself. Yet not only did Bork's ode to legal Progressivism fail to win him any additional Democratic supporters, it almost certainly helped doom his already troubled nomination, which eventually went down to defeat in the Senate by a vote of 58-42. That's because American liberals had long ago abandoned the sort of all-encompassing judicial deference espoused by Oliver Wendell Holmes. Instead, modern progressives like Kennedy and Biden took their cues from a new breed of liberal jurist, best represented by figures such as Earl Warren and William O. Douglas. Those justices had led the mid-20th-century Supreme Court through what has been dubbed a "rights revolution," a busy stretch during which government actions were overturned in the name of voting rights, privacy rights, and many other rights besides. Put differently, in the half century that fell between the presidencies of Franklin Roosevelt and Ronald Reagan, the American left had learned to stop worrying and love judicial activism.

Footnote Four

The story of this sweeping liberal transformation begins in the most humble of places: a footnote. In 1938 the Supreme Court considered the constitutionality of a federal law forbidding the interstate shipment of so-called filled milk, which is basically a milk product made with oil rather than milk fat. The dairy industry viewed the product as a competitor and lobbied successfully for its restriction. Adopting a deferential posture, the Supreme...