A Country I Do Not Recognize

by Robert H. Bork

  That the Court could not make the move to compulsory integration openly did not stop it from making the move. The Court explicitly denied that it was imposing a requirement of integration in Green but imposed the requirement nonetheless by holding unconstitutional a racially imbalanced school system that concededly had ended all racial discrimination. The only requirement, the Court insisted, was “desegregation,” nothing more than the requirement of Brown. “Desegregation,” however, now meant not ending but practicing racial assignment. To this day, the Court insists that there is no constitutional requirement of integration or racial balance—that one-race schools are not unconstitutional—even while ordering that students be bused across citywide school districts that, like Denver’s, were never segregated, in order to increase racial balance.101 Rather than having to reverse Brown, the Court was thus able to wrap itself in the protective mantle of Brown, performing the feat, possible only for an institution both subject to no review and unscrupulous, of requiring racial discrimination in the name of prohibiting it.102 The restraining power of law—rules stated in words—is entirely dependent on the good faith of the interpreters of the words, and good faith has been entirely absent from many of the Court’s decisions on race.

  Chief Justice Warren Burger—newly appointed by President Nixon, who ran for president as an opponent of racial busing—tried to get the Court to state honestly the meaning of “desegregation” and the “nonracial unitary system” that was supposedly the constitutional requirement. Justice Brennan successfully prevented the Court from doing so by arguing that for it to openly state that the actual constitutional requirement was not desegregation but simply integration “would, given the views of most whites, simply be impractical.”103 When honesty is impractical for the justices to achieve their objective, they can and do simply turn to its alternative. School boards would continue to be told that they were required to operate nonracial school systems, while at the same time being ordered to assign students to schools by race.

  Another difficulty faced by the Court in imposing a requirement of school racial integration in the name of desegregation is that this requirement is precisely what Congress was most concerned to avoid in enacting Title IV of the 1964 Act. Opponents of Title IV insisted, correctly, that zealous judges and bureaucrats would not be satisfied with Congress’s purpose to make Brown’s prohibition of segregation by law a reality, and would seek, instead, to move to forced integration. Senator Hubert Humphrey, floor manager of the bill in the Senate, dismissed their fears as “bogeymen and hobgoblins” and undertook to give opponents every assurance that what they feared could not happen.104

  After all, Senator Humphrey pointed out, Title IV defines “desegregation” as “the assignment of students to public schools . . . without regard to their race,” and in a seeming excess of caution, repeats that it “shall not mean the assignment of students to public schools in order to overcome racial imbalance.”105 What could be clearer than that? The prohibition is then repeated twice more in Title IV.106 As the ultimate assurance to skeptical southern senators, Senator Humphrey stated that Congress could not impose a requirement of busing for school racial balance even if it wanted to, because that would be a constitutional “violation, because it would be handling the matter on the basis of race and we would be transporting children because of race.”107

  All to no avail. In 1971 in Swann v. Charlotte-Mecklenburg Board of Education, a unanimous Court blandly asserted, with no citation to the Congressional Record, that the definition of “desegregation” as nonracial assignment, and not as assignment to overcome racial imbalance, was not meant to apply to the formerly segregated school systems of the South, the only place where, Congress thought, a requirement of desegregation could be applied.108 As Senator Sam Ervin of North Carolina, considered the Senate’s leading constitutionalist at the time, commented:

  [T]he Congress decided to take no chances with the courts, so it put in something else that even a judge ought to be able to understand. It not only defined “desegregation,” affirmatively, but also defined what “desegregation” is not. The Supreme Court adopted exactly the opposite interpretation of the meaning of the word “desegregation.” . . . [T]he Supreme Court nullified this act of Congress by holding that Congress was a bunch of legislative fools. . . .109

  In Regents of the University of California v. Bakke, the Court similarly held that Title VI’s prohibition of racial discrimination by institutions receiving federal funds was not violated by the practice—by a state university that received federal funds—of racially discriminating in granting or denying admission.110 In Griggs v. Duke Power Co., a unanimous Court effectively converted Title VII’s prohibition of racial discrimination into a requirement of discrimination by holding that Congress meant to forbid an employer’s use of such ordinary employment criteria as a verbal test or a high school education when the effect was to disproportionately disqualify blacks.111 In fact, Congress had specifically considered the issue, and made it clear that employers acting in good faith were free to set qualifications as high as they wished regardless of disproportionate racial effects.112 It is unlikely that any public officials other than Supreme Court justices could engage in comparable acts of malfeasance and bad faith without being subject to serious sanction.

  “[N]o one—absolutely no one,” not even the president, Special Prosecutor Leon Jaworski proudly asserted, when President Nixon was forced to succumb to a Supreme Court order that he release his infamous tapes, “is above its law.”113 A more accurate statement of what the incident illustrated would be that even the president is subject to the Supreme Court. But to whom, Jaworski unfortunately did not go on to inquire, is the Supreme Court subject? No one issues orders to it or reverses its decisions, and especially in constitutional cases, it is not only above the law but its decisions, it insists, are the law.114

  Bishop Hoadly famously pointed out to the King of England in 1717 that “[w]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.” Charles Evans Hughes, later chief justice, made the same point in a speech in 1907: “We are under a Constitution, but the Constitution is what the judges say it is.”115 Which is to say, of course, that we are under only the Court, and the Court is under no one. Power without accountability is the definition of tyranny, and even good people when made tyrants take on characteristics of tyrants. Tocqueville has been proven correct in that the Supreme Court is not the least, as Hamilton argued, but the most dangerous branch of the national government, such that if it “is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war,”116 which, of course, is exactly what happened.

  The Means of Limiting the Supreme Court’s Power

  The means of limiting the power of the Supreme Court and returning the nation to the constitutional plan of democratic federalism clearly exist in theory. The justices, after all, number only nine and control, as Hamilton pointed out in defense of judicial review, neither the sword nor the purse, implying that those who do may use them, if need be, to control the Court. Finding the will to use them is another matter. Most Americans and, apparently even more so, their political leaders have become so thoroughly accustomed or resigned to leaving basic social policy decisions to the Court that it seems to have become part of the natural order and taken on aspects of a religious faith. The Constitution is our holiest scripture, but rather than therefore fiercely defending it against the Court’s desecrations, we have allowed ourselves to accept the Court as its oracle. Liberal legal academia has largely succeeded in establishing that blunt criticism of the Court is an attack on both judicial independence and—like noting the emperor’s nakedness—a necessary public faith. The result is that we have allowed a handful of electorally unaccountable public officials, acting in the name of protecting our constitutional rights, to deprive us of our most important right, the right of sel
f-government.

  If the Court’s decisions on, for example, abortion (converting an issue that was being peacefully settled on a state-by-state basis, generally in favor of liberalization, into an intractable issue inflaming national politics) or forced busing (devastating the nation’s public school systems at the cost of billions of dollars for no benefit) were not enough for the people to demand and for Congress to take action to curb the Court’s power, it is hard to see what could be.117 Democracy is not self-preserving; it can be ended by popular vote or, as here, by the failure of elected representatives to protest as issue after issue of basic social policy is removed from their control. The crux of the problem, as already noted, is that the cultural elite distrusts and fears popular rule, much preferring rule by the Court; and the elite dominates communication and education.

  Justices can, of course, be impeached, which Hamilton saw as a “complete security” against misuse of the power of judicial review. Sufficient ground for impeachment, as then Representative Gerald Ford said about the attempted impeachment of Justice Douglas, is “whatever a majority of the House of Representatives considers [it] to be,”118 Congress apparently having on this, if on little else, the last word. A justice’s demonstrable deliberate dishonesty in the performance of judicial duty would, in a system insisting on judicial integrity, be grounds enough. By this standard, very few justices of the past fifty years would not have had short careers. It would seem that the justices can hardly be impeached, however, for continuing to do—though at an accelerating pace—what they have always been known and permitted to do; they must at least be given notice that a certain minimum level of integrity will be required from now on. In any event, impeachment is a crude, disputable, and unseemly means of remedying judicial misbehavior.

  The Constitution provides that the Supreme Court exercise appellate jurisdiction subject to “such Exceptions and under such Regulations as the Congress shall make.”119 Theoretically, Congress could use this power to virtually take the Court out of the business of manufacturing constitutional law, leaving it with only the very limited original jurisdiction granted it by the Constitution. Attempting to limit the Court’s power by laws restricting its jurisdiction is subject, however, to the Catch-22 problem that the constitutionality of the laws will itself be subject to judicial review, with the result that the attempt will be successful only to the extent that the Court permits.120 Use of the power would also leave the Court’s activist rulings of unconstitutionality standing and very likely to be followed by other courts. Congress can presumably also limit the jurisdiction of the lower federal courts, which it created by statute, but state courts—often at least as activist as the Supreme court—would remain, subject only to such controls as are available to state legislatures.

  Congress’s use of the jurisdiction-limiting power also has an unfortunate aspect of seeming to win the game by silencing the umpire. The restrictions on abortion and pornography and state-sponsored prayer in schools will be no less unconstitutional, protestors will insist—e pur se muove (“and still it moves” legend has Galileo saying when forced to renounce the heliocentric planetary theory)—simply because the Court can no longer declare them so. Despite these problems and although the power has been used so infrequently that its scope is uncertain and disputed, it remains an extremely important power. The Court will surely feel compelled, in the face of a revived and determined Congress, to uphold at least some carefully drafted measures. Any actual exercise of the power by Congress would have the extremely valuable effect, apart from what it actually does, of advising the Court that Congress has at last become seriously concerned with the Court’s usurpation of legislative authority and has mustered the political will to do something about it.

  Finally, the Court’s power can be limited in various ways by a constitutional amendment, even though amendments, too—short of one abolishing judicial review—would be subject to the Court’s interpretation. The United States Constitution is, however, exceedingly difficult to amend, perhaps the most difficult of any developed nation’s. An amendment must be proposed by a vote of at least two-thirds of each house of Congress or at least two-thirds of the states meeting in a convention and, in either case, then ratified by three-quarters of the states.121 Disapproval by one-third plus one of the members of either House of Congress or by one legislative body in one-quarter plus one of the states would be sufficient to defeat it. The amendment process does very little to reconcile government by judges with democracy. It was apparently thought that its use would rarely be necessary, but the framers could not have foreseen that the result would be a system of government by judges who can be highly confident that their decisions, no matter how harmful and unwanted by the people, will not be overturned.

  A frequently suggested amendment would eliminate life tenure for Supreme Court justices, limiting their terms of office to, for example, twelve or sixteen years. The result would be to ensure or nearly ensure that each newly elected president made one or more appointments to the Court. President Bush has not yet made an appointment to the Court; President Clinton, like President Reagan, during two terms in office was able to make only two. Along with life tenure, the robe today seems to confer longevity, and few justices do not exhaust it; presidents leave office after four or eight years while their appointees to the Court remain over three or four decades. Lifetime judicial tenure may have had more to be said for it when the average life span was forty or fifty years. The present Court has remained unchanged in membership for over ten years.

  Other suggestions include selecting the justices by election, usually for a fixed term, rather than by appointment, and requiring that rulings of unconstitutionality be by a unanimous, or at least more than majority, vote. These, like almost any amendment seeking to limit the power of the Court, are likely to be highly beneficial, if only because they at least demonstrate a popular and political awareness that there is a problem needing correction and a willingness to act. The same may be said of proposed amendments to overturn particular Supreme Court rulings of unconstitutionality. The Court’s decision that public burning of the American flag is constitutionally protected “speech,” for example, may not be among its most socially harmful decisions, but overturning it by constitutional amendment would, again, at least provide a much needed demonstration that the Court need not on every issue have the last word.

  None of these proposed amendments would, however, address the root problem of judicial review. Electing justices and limiting their term of office would not eliminate the Court’s policymaking power or its inconsistency with the constitutional scheme, though success in obtaining an amendment would no doubt cause the justices, at least at first, to be more cautious in its exercise. It is conceivable, however, that having only a limited term of office, appointed or elected, might be seen by some justices as all the more reason to act quickly and decisively while they can. Requiring a supermajority or even unanimous vote for rulings of unconstitutionality should reduce, but would certainly not eliminate, unjustifiable invalidations. The dishonest and indefensible Green and Swann decisions, for example (as well as Griggs, a statutory case) were decided unanimously.

  Robert H. Bork has made the valuable suggestion of a constitutional amendment authorizing Congress to overturn Supreme Court constitutional decisions by a supermajority vote. This would undoubtedly be a significant limitation on the Court’s power, as it would create a realistic possibility of elected legislators having the last word on fundamental social policy issues, a minimum requirement of democratic government. Because it is much easier to defeat than to enact legislation, however, the Court would as a practical matter still often have the last word, and all the more so, of course, to the extent that more than a majority vote in Congress is required. The amendment would nonetheless make so great an improvement in our present situation that it should be fully and enthusiastically supported by opponents of rule by the Court, especially in the very unlikely event that it should appear to have any chanc
e of being adopted.

  The surest and most complete—and therefore least likely to be adopted—response to the usurpation of legislative power by judges is, of course, a constitutional amendment simply abolishing judicial review. The result would be to return the nation to the experiment in popular self-government with which it began and make a strong statement of renewed self-confidence by the American people in their ability to govern themselves without the guidance, supervision, and permission of their supposed moral and intellectual superiors. All that is needed to support the move is agreement with Churchill that imperfect as democracy may be, it is less so than all the other forms of government that have been tried. Whatever the best form of government, surely government by majority vote of nine unelected, life-tenured lawyers pretending to interpret the Constitution is one of the worst.

  A much less drastic constitutional amendment, fortunately, is likely to be almost as effective and more difficult to oppose. As noted above, it is not judge-enforced constitutionalism, as such, but judicial activism, rulings of unconstitutionality not based on the Constitution, that gives the Court its ruling power. Whatever might be said for real constitutionalism—judicial enforcement of meaningful constitutional provisions—as an aid to or improvement on democracy, there would seem to be nothing to be said for constitutionalism without the Constitution, for treating constitutional provisions as meaningless except as transfers of policymaking power to judges.