The Tempting of America

by Robert H. Bork

  When a judge assumes the power to decide which distinctions made in a statute are legitimate and which are not, he assumes the power to disapprove of any and all legislation, because all legislation makes distinctions. But does that not mean that the equal protection clause is either a nullity or a deliberate conferral of just such power upon judges? Not at all. The clause was aimed primarily at the protection of the newly freed slaves by requiring that the laws of the states treat blacks and whites equally. The men who ratified the fourteenth amendment had made the decision that statutory inequality between blacks and whites was immoral and was to be disallowed. It is true, as Justice Bradley said in the Slaughter-House Cases, that the fourteenth amendment’s “language is general, embracing all citizens,”27 but the language of many other provisions is general, and yet courts have recognized the need for limitations in terms of the primary purpose of the ratifiers. The case for confining the amendment to statutory distinctions drawn in terms of race or ethnicity is that permitting the judges to choose subjectively which grounds of classification they will treat like race confers upon the courts a power to tell legislatures how all of their statutes on every subject must be written. That, we may be certain, was not what the ratifiers of the fourteenth amendment had in mind.*

  Justice Douglas and the Justices who joined his opinion were aware of this difficulty, of course, and sought to avoid it, or the appearance of it, but the method they chose did not cure anything. The Skinner opinion said that the Court would not interfere with most classifications made by law but that this classification was different because it touched a right that was “fundamental” and “basic.”28 (If that is true, it is impossible to see how Skinner would have been helped by the sterilization of embezzlers.) The problem is, how does the Court know which rights are fundamental and basic? One answer might be that rights guaranteed by the Constitution are fundamental, but that answer could be of no help to the Court, because the right to procreate is not guaranteed, explicitly or implicitly, by the Constitution. (If the right were a real one, presumably life imprisonment without conjugal visits would violate the Constitution.) Thus, to justify Skinner’s approach the Court must decide that there are fundamental rights that the Court will enforce and that it knows how to identify them without guidance from any written law. This is indistinguishable from a power to say what the natural law is and, in addition, to assume the power to enforce the judge’s version of that natural law against the people’s elected representatives.

  I am far from denying that there is a natural law, but I do deny both that we have given judges the authority to enforce it and that judges have any greater access to that law than do the rest of us. Judges, like the rest of us, are apt to confuse their strongly held beliefs with the order of nature. If the only effect of Skinner were to prevent a few sterilizations in Oklahoma, these matters would not be worth discussion. We could shrug and forget it as an aberrational decision that was at least morally acceptable if not constitutionally justifiable. But that is not the way law works. Decisions are precedents; doctrines are applied to new cases; and what begins as an attitude of “Let’s do it just this one time” grows into a deformation of constitutional government. Skinner, in its attempt to frame doctrine that would stop the operation of a law that the Court regarded as cruel, framed doctrine that gave judges a new power to read their likes and dislikes into the Constitution. That power did not come to its full fruition, however, until the appearance of the Warren Court.

  *This point, which I have made before, became a focal point of the opposition to my nomination. Many people and senators expressed horror at the possibility that I thought “the Constitution does not apply to women.” Of course it does, just as it applies to everybody. What I had said in the past was that it did not forbid virtually all classifications based on gender as it forbids all classifications that disfavor racial minorities. Few things are clearer than that the ratifiers of the fourteenth amendment did not think racial and sexual groups needed special protection to the same degree. I will discuss my attempt to come to terms with the Court’s treatment of women, and in some cases males, as special classes in Chapter 15.

  3

  The Warren Court: The Political Role Embraced

  The Court headed by Chief Justice Earl Warren from 1953 to 1969 occupies a unique place in American law. It stands first and alone as a legislator of policy, whether the document it purported to apply was the Constitution or a statute. Other Courts had certainly made policy that was not theirs to make, but the Warren Court so far surpassed the others as to be different in kind. Nor is this entirely, or even primarily, attributable to Earl Warren himself. The groundwork had been laid by a generation of legal scholars, the “legal realists,” and a legal realist faction existed on the Court well before Warren arrived.

  Arrested Legal Realism

  While the New Deal Court was still largely intact, there developed within it sharply opposing views of the judicial function. As Arthur M. Schlesinger, Jr., described the situation in 1947, “the Black—Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frank-furter—Jackson wing with preserving the judiciary in its established but limited place in the American system.”1 The Black-Douglas view, Schlesinger reported, rested upon ideas particularly dominant at the Yale law school.

  The Yale thesis, crudely put, is that any judge chooses his results and reasons backward. The resources of legal artifice, the ambiguity of precedents, the range of applicable doctrine, are all so extensive that in most cases in which there is a reasonable difference of opinion a judge can come out on either side without straining the fabric of legal logic. A naive judge does this unconsciously and conceives himself to be an objective interpreter of the law. A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results.

  As Schlesinger made clear, the Black-Douglas wing applied its social preconceptions to the interpretation of statutes as well to the Constitution.

  This constitutes what I have called “disguised activism.” Though they wrote opinions that purported to explain their results in terms of legal doctrine, “Black and Douglas,” according to Schlesinger, “vote less regularly for doctrines than for interests—for the trade union against the employer, for the government against the large taxpayer, for the administrative agency against the business, for the injured workman, for the unprotected defendant, against the patent holder—so that, in the phrase of Professor Thomas Reed Powell, ’the less favored in life will be the more favored in law.’ ” Powell’s was a romantic way of describing a redistributionist or Robin Hood ethic. In the examples given, legislatures had arduously drafted laws precisely in order to define the respective rights of unions and employers, the IRS and the taxpayer, the administrative agency and the business. Elected representatives had argued their policies and compromised their differences to arrive at a democratic result. Then judicial activists upset the compromises and the policies by deciding that, regardless of the outcome of the democratic process, certain groups should be still more favored. It is difficult to find in that any defensible theory of the judicial function.

  Nor is it correct that law is so indeterminate that these results can be reached without straining the fabric of legal logic. The opinions of Justices Black and Douglas were frequently seen by lawyers not only to have strained but to have shredded that fabric. But nothing could be done about it. When a judge upsets a legislative compromise, the legislators who could not get their way entirely in the legislature, but who have won through a disingenuous Supreme Court interpretation, are most unlikely to agree that the law should be amended to restore the original compromise.

  The old Yale thesis, as described by Mr. Schlesinger, is exces-sively cynical in another respect. Not all judges choose their result and reason backward. Alexander M. Bickel called this philosophy “arrested realism” and
accurately observed: “It was never altogether realistic to conclude that behind all judicial dialectic there was personal preference and personal power and nothing else.”2 Any lawyer or judge who is honest with himself knows that he often intuits a conclusion and then goes to work to see if legal reasoning supports it. But the original intuition arises out of long familiarity with the structure and processes of law. A judge will have such intuitions in cases where he has not the remotest personal preference about the outcome. A process like that must occur in all intellectual disciplines. But the honest practitioner, including the lawyer or the judge, also changes his mind when the materials with which he works press him away from his first tentative conclusion. I have had, as many other judges have, the experience of reaching one result after reading the briefs and reversing my position at oral argument, or of voting one way at the judges’ conference after argument and then changing my mind in the process of reading, discussion, and writing. I have had the even less pleasurable experience of publishing my opinion and then concluding I was wrong upon reading the petition for rehearing and having to change the result of the case. Many judges can testify to similar experiences. If that is true, and it is, then it is not true that all judges choose their results and reason backward.

  But it is true for some judges. We have canvassed instances of it in this book. One can only say with Bickel, “[T]hat is a reality, if it be true, on which we cannot allow the edifice of judicial review to be based, for if that is all judges do, then their authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.”3 To accept that view of the judicial process is profoundly cynical, and yet it is regularly taught in our best law schools. Indeed, it is hard not to teach it even for a professor who explicitly condemns it; the casebook teaches cynicism. At Yale, constitutional law is taught in the student’s first semester, and the casebook collects the opinions of Justices who did and do adhere to a philosophy of voting for interests and personal values. The students, who are highly intelligent, quickly come to see that the opinions they read rend the “fabric of legal logic.” They see that much of constitutional law has in fact been politics. If some Justices of the Supreme Court of the United States regularly perform in this way, it is almost idle for the professor to insist that things need not be this way. In any event, many students find the casebook’s lesson congenial. They like the political outcomes of the cases. It takes a great deal of self-discipline to renounce a philosophy that some of the most renowned figures in the law hold and that produces results you like. To quote Bickel once more, “The sin [of cynicism] is mortal, because it propagates a self-validating picture of reality. If men are told complacently enough that this is how things are, they will become accustomed to it and accept it. And in the end this is how things will be.”4

  That is, indeed, how things were during the era of the Warren Court. The judicial philosophy espoused by Black and Douglas came to be a majority philosophy with new appointments, particularly those of Earl Warren as Chief Justice, and Justices Tom Clark, William J. Brennan, Jr., Arthur Goldberg, Abe Fortas, and Thurgood Marshall. It would be unfair to say that each of these men consciously held the philosophy of “arrested realism” that Bickel described. Many judges and Justices come to their duties with no particular philosophy of judging in mind. Most careers in the law that lead eventually to the bench give no reason to ponder the subject, and by the time a man or woman becomes a judge it is too late. Judging these days is a very busy occupation; it would be very hard to lift your eyes from the briefs and memoranda long enough to work out a philosophy that it generally takes years to develop. A judge works with whatever intellectual capital he accumulated before coming to the bench; he is most unlikely to add appreciably to his store while there. Thus, whether a particular Justice consciously adheres to a philosophy of political judging is not always easy to say. Earl Warren himself was one of whom that was true. He was not known for his ease in the company of abstractions. Meaning to be kind, one observer said of him that he was “born to act, not to muse,” which is rather an odd compliment for a man whose job is intellectual. Be that as it may, Warren found congenial the style of judging that Black and Douglas had made prominent—the mood of attack, reform, and impatience with considerations other than social results.

  It must be said, however, that Justice Black came to have significantly more respect for the limits of the Constitution than Justice Douglas and the other leading members of the Warren majorities ever showed.

  The catalogue of the Warren Court’s legislative alterations of the Constitution is a thick one and is organized by the theme of egalitarianism. Aside from instances to be discussed at greater length in a moment, the Court: expanded the equal protection concept to strike down traditional state classifications, such as the difference in legal entitlements between legitimate or acknowledged children and unacknowledged illegitimate children;5 found that access to justice was a fundamental interest, so that Illinois, which was not constitutionally required to allow any appeal from a criminal conviction, had to pay for written transcripts for indigents who wished to appeal;6 and ruled that a state could not impose a length-of-residency requirement for welfare benefits.7 Criminal law was remade as the constitutional rights of defendants were multiplied, including the requirement that persons arrested be given Miranda warnings, with which every TV watcher is familiar: “You have the right to remain silent,” etc.8 The rule excluding evidence the Court found improperly obtained, often on the most technical grounds, was expanded.9 Antitrust law was made into an intellectual shambles as the Court ruled against almost every business defendant, no matter what the precedent, the economic reality, or the lower court’s findings of fact.10 This, too, was part of the interest-voting pattern that Schlesinger noted in the Justices who were the forerunners of the Warren Court. Justice Douglas, formerly a professor at the Yale law school, visited the school when he was a leading figure on the Warren Court. A student of mine asked him why the government won every antitrust case, and he replied that he was ashamed a Yale student had to ask such a question. This was a period when one who took law and justice seriously, as an intellectual discipline, as something more than ultra-liberal politics, had reason to be extremely unhappy with the Supreme Court of the United States.

  An adequate discussion of the Warren Court’s unprincipled activism, manifested in both constitutional and statutory law, would take up an entire book. I can touch on only a few instances, but my dissatisfaction with that Court’s performance, far from being idiosyncratic, was widely shared at the time. Professor Milton Handler, of the Columbia law school, summed it up: “Eminent scholars from many fields have commented upon [the Warren Court’s] tendency towards overgeneralization, the disrespect for precedent, even those of recent vintage, the needless obscurity of opinions, the discouraging lack of candor, the disdain for the fact finding of the lower courts, the tortured reading of statutes, and the seeming absence of neutrality and objectivity.”11 That catalogue is just, perhaps even merciful, and it described a Court that had spun out of control.

  Oddly enough, the Warren era opened with one of constitutional law’s great triumphs, but it was a triumph so misperceived by the Justices themselves that it led to some of the law’s most blatantly illegitimate decisions.

  Brown v. Board of Education: Equality, Segregation, and the Original Understanding

  Appointed by President Eisenhower, Earl Warren assumed the post of Chief Justice in 1953 and was plunged at once into the greatest case of the twentieth century, Brown v. Board of Education,12 a case that proved to be the defining event of modern American constitutional law. Brown was the culmination of years of litigation, primarily by the National Association for the Advancement of Colored People, designed to persuade the Supreme Court to overrule the 1896 decision in Plessy v. Ferguson.13 Plessy had declared the equal protection clause of the fourteenth amendment satisfied by a Louisiana law that required “equal” but separate accommodat
ions for black and white railroad passengers. Justice Brown’s opinion for the majority said the fallacy of the attack on the statute lay in “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” To this, the first Justice Harlan’s dissent very sensibly replied that everyone knew the law had “the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.”14 He went on to say, in a sentence that has become famous, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But he was a minority of one.

  The legal campaign to have Plessy overruled did not begin with a flat-out assault on the principle of “separate but equal.” Rather, litigation was directed at particular segregated facilities to show that they were not equal, that whites always had better facilities, usually much better. Litigation of this sort succeeded again and again, and, by demonstrating the invariable inequality of facilities, the litigation began to undermine the legal as well as the moral foundations of the separate-but-equal doctrine.