The Tempting of America

by Robert H. Bork

  The American Cyanamid decision was grossly distorted during the campaign and the hearings. The facts were quite otherwise than People for the American Way and Metzenbaum indicated.23 The charge was that the company was pumping lead into the air of the workplace so that the fetuses of pregnant female employees were endangered and that I had permitted the company to achieve a safe workplace by telling the women they must be sterilized or fired. The charge was false in every particular. The statement that I had put women to this unhappy choice was wrong. The women who underwent voluntary sterilization did so four years before I became a judge. The only issue before me and the other two judges on the panel was whether a relatively small fine should be assessed against the company long after the fact. The company was not pumping lead into the workplace, a statement by PAW that implies willfulness on the part of the employer. The unavoidable consequence of one stage of the manufacturing process was to produce lead in the air. Nor, as PAW asserted, did the company have the alternative of “cleaning up the air.” The factual finding of the administrative law judge, which we were bound to accept because it was not challenged on appeal, was that no technology existed which would allow the company to remove enough lead from the air to make that department safe for pregnant women.

  The company was therefore faced with an unsafe condition of the workplace, as that is defined by the Occupational Safety and Health Act. Not being able to remove the lead, it had to remove women of childbearing age. There being only a few other openings in the plant, some of the women would have been transferred to lower-paying jobs and some would have been discharged. If the company had simply transferred or discharged the women, there would have been no violation of law. Indeed, there would have been full compliance with the law. But some of the women apparently wanted to keep these jobs, and the company informed them that sterilization was an option. Five of them chose that option.

  There is, I am sure, a moral question whether the company should have made that choice known to the women. Perhaps it should have said that some were transferred, some were fired, and that it would not retain a woman even if she were sterilized. How far, as a matter of morality, the company was obliged to make the moral decision for the women, a decision that would have run against the wishes of some of them, or how far the company was obliged to treat the women as free adults capable of making their own choices is one of those questions about which people may differ.

  Fortunately, no such knotty question of morality was put before the appeals panel. The only question before us was a legal one: whether offering the women the information to enable them to make a choice constituted an “unsafe condition of the workplace” as defined by the Occupational Safety and Health Act. Unanimously, we thought it absolutely clear that the offer of a choice was not an unsafe working condition. Given the statutory language and the legislative history, there could be no doubt on that score. The administrative law judge who first heard the case stated, “There’s a law that covers this, and it’s not the Occupational Safety and Health Act.”* He found it “clear that Congress conceived of occupational hazards in terms of processes and materials which cause injury or disease by operating directly upon employees as they engage in work or work-related activities.” He was affirmed by the Occupational Safety and Health Review Commission, whose decision we reviewed and affirmed. The Secretary of Labor had the right to appeal from the Commission and chose not to do so. The union did appeal but after our decision did not seek en banc review by the full Court of Appeals and did not petition the Supreme Court for review. It was a perfectly cut-and-dried case and no one who troubled to learn the facts and the law could have thought otherwise. Under the statute, a policy of offering women a choice was not a “hazardous condition of the workplace.” The judges who joined me in that decision were Justice, then Judge, Scalia and Senior District Judge Williams. When Judge Scalia was up for confirmation to the Supreme Court, no member of the Senate Judiciary Committee asked him even one question about his vote in American Cyanamid. Howard Metzenbaum’s moral outrage was nowhere in evidence.*

  The accusation that I thought the Constitution does not protect women is, of course, wrong. The Constitution protects people, women equally with men. The real question is whether the Constitution singles out women for special protection in the way that it does racial minorities. The relevant constitutional text is the equal protection clause of the fourteenth amendment. The proponents of the Equal Rights Amendment assume that the equal protection clause has no special application to women or, if it does, the clause does not provide adequate protection.

  It is clear that the ratifiers of the fourteenth amendment did not think they were treating women as an oppressed class similar in legal disadvantages to the newly freed slaves. That is an entirely modern notion and written into our jurisprudence only recently by the Supreme Court.24 That innovation has raised a number of difficulties since courts cannot treat women in the same way that they do racial minorities. As explained in Chapter 3, the application of the equal protection clause to racial minorities very properly led eventually to a rule that government may not provide different treatment or facilities to the races (leaving aside the unsettled question of discrimination against white males). No such rule can be framed with respect to men and women, because our society feels very strongly that relevant differences exist and should be respected by government. To take the most obvious examples, no city could constitutionally provide separate toilet facilities for whites and blacks but certainly may do so for men and women. Similarly, the armed forces could not exempt one racial group from combat duty but surely may keep women from combat.25 This means that a court that applies the fourteenth amendment to women as a special group, rather than as part of the human race, must make cultural and political choices that it need not make when applying the amendment to racial groups. That fact argues in favor of leaving such choices to the body politic. As attitudes about the respective roles of men and women change, those changes will be reflected in legislation. Women are certainly not a “discrete and insular minority” but are, in fact, a slight majority of the population.26

  To say that women (and men) are not protected as such by the fourteenth amendment raises its own difficulties. Though the intentions of the ratifiers of the fourteenth amendment may have been narrow, the language they used is broad: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”27 Very early on, the Supreme Court expanded the protection of the clause beyond the class of newly freed slaves. Yick Wo v. Hopkins,28 decided in 1886, held unconstitutional discrimination by the city of San Francisco against a native and subject of China. The discrimination was racial, but the central purpose of the amendment had been to protect a different race. Still, the decision seems within the general intention of the clause, and it raises no question about courts making political and cultural choices since the rule can be applied to all areas of life.

  The question becomes how far the protection of the clause may be extended beyond race and ethnicity. The clause has, in one sense, been extended to every subject that law covers since the Supreme Court has long required that any challenged legislative distinction have a rational basis. For the most part, that has been a requirement easily met but it does provide some foundation for scrutinizing legislative distinctions between the sexes. I had taken the position that, except for this rational basis test, the equal protection clause should be restricted to race and ethnicity because to go further would plunge the courts into making law without guidance from anything the ratifiers understood themselves to be doing.29 The Court’s present law of equal protection is unsatisfactory because there is no adequate explanation for its choice of groups entitled to equal protection or for the differing degrees of protection it affords to the various groups. Thus, the Court has stated that some legislative distinctions, such as that between races, require strict scrutiny while others, such as distinctions between economic interests, deserve only minimal scrutiny. But the Court
’s various members have gone on to articulate various and varying intermediate levels of scrutiny for distinctions made as to other groups, such as the sexes. The result has been an incoherent body of case law, as anyone who has tried to teach it knows. It seemed to me that the best way of clarifying what can only be described as a mess was to adopt Justice John Paul Stevens’ suggestion that all legislative distinctions between persons be reasonable.30 That comports with the language of the equal protection clause and would produce doctrine relating to distinctions between the sexes quite similar to current doctrine. There is unlikely to be much work for the equal protection clause to do with respect to governmental distinctions between the sexes because legislators are hardly likely to impose invidious discriminations upon a group that comprises a slight majority of the electorate. Justice Stevens’ formulation might not in fact cause any major changes in the application of the equal protection clause but it would focus judges’ attention on the reasonableness of distinctions rather than on a process of simply including or excluding groups on criteria that can only be subjective and arbitrary.

  In this area as well, I had a public record both as Solicitor General and as a Circuit Judge, and that record displays not the least hostility to the rights of women.31 I have argued in the Supreme Court for women’s rights and, as in the case of race, never advanced a position less favorable to those rights than the position the Court adopted. Similarly, as a judge, I have often ruled in favor of women’s claims.32 One of the more ironic aspects of the charges made was that Senator Metzenbaum kept saying that when he flew he learned that airline stewardesses were afraid of me. That seemed ironic. The fact is that I participated in a decision and wrote part of the opinion holding that Northwest Airlines had discriminated against stewardesses and must pay damages as well as give them equal pay in the future.33 Nobody could look at that record objectively and see anything but an attempt to apply the law as it is written. The groups and many of the senators in opposition nonetheless purported to see something else, and they broadcast it far and wide. When Senator Metzenbaum asked former Attorney General William French Smith to account for the fact that millions of Americans, including women, feared me, Smith replied that “to the extent that fear exists, I think a large part of it is due to the misrepresentations and the distortions and the propaganda that has been put out about this man.”34 Pressed, he said “that is false, and it borders on dishonesty, and it borders on lying to the American public.”35

  Big Business, Government, and Labor

  The charge was repeatedly made that in my judicial decisions I always favored government, except when it opposed big business, always favored big business over small business, and usually ruled against labor. None of this bore any relation to the truth.

  We may begin with antitrust law. The Biden Report attempted to convert my view that the antitrust laws should be interpreted to promote consumer welfare into a pro-business, anti-consumer philosophy.36 The Report said consumer welfare was a technical concept that allowed business to attain greater efficiency even if that means higher prices for consumers.37 Not only is that not my view, it is an impossibility. Consumer welfare refers to the most efficient distribution and employment of society’s resources so that total output, as consumers value it, is maximized. It is a standard concept in economics and is not pro-business. As a matter of fact, Biden’s example is economic nonsense. If manufacturers achieve greater efficiencies, they maximize their own returns by increasing output, which necessarily lowers prices, and that is true under monopolistic as well as competitive conditions. Prices can rise only if the new efficiency takes the form of an addition to the product being sold, but that means consumers are pleased to get more for the additional price. If consumers are not pleased, there is no increase in efficiency but a decline. The Supreme Court now takes the position that consumer welfare is the goal of antitrust and has cited my book The Antitrust Paradox38 in support of that conclusion.39

  My decisions in administrative law and regulatory matters have been analyzed by others. Professor Richard B. Stewart of Harvard stated that while he disagreed with a number of my opinions, they “are well within the mainstream of current judicial thinking and practice in the federal appeals courts and, especially, the Supreme Court…. If we are to judge by his decisions in regulatory and administrative law, claims that Judge Bork is a radical revolutionary of the right are simply ludicrous.”40 Professor Robert A. Anthony of George Mason, a former Chairman of the Administrative Conference of the United States, analyzed my decisions (in cases where another judge wrote the opinion) in forty-eight cases involving regulatory issues and eight cases involving claims for benefits from government.41 Of twelve cases in which business opposed a regulatory agency, Anthony found that I decided seven for the agencies, four for the business interests, and one had mixed results.42 Often in an appeal from an agency action, business interests are on both sides of the dispute. Of twelve cases in this category, Anthony found that I reversed the agency in only four.43 In twenty-four cases in which nonbusiness interests challenged agency action, nine favored the citizen or public organization, fifteen favored the agency. The parties in whose favor I ruled “included a public housing tenants’ group, environmental action organizations, a labor union, Navajo Indian groups, a radio listeners’ group, consumer organizations, and a state asserting its right to regulate beyond the federal minimum.”44

  Though the Biden Report charged that I favored government against the individual, Professor Anthony noted that not a single case was cited in support of the charge.45 Anthony thought any such bias should show up in cases involving administration of federal benefits entitlement programs. There were eight decisions in this category. In the three cases where an agency had denied the claims of individuals, I ruled for the individuals and against the agency in all three.46 In three others where organizations representing individuals challenged the agency action, I held for the recipients’ group once, for the agency in a second, and dismissed the third because Congress had precluded court review by statute.47 In two cases of hospital claims for increased reimbursement under Medicare, I voted once for the hospital and once for the agency.48 Anthony concluded the “cases were decided on the merits, not on politics or ideology.”49

  In my tenure on the Court of Appeals, I participated in fortysix labor cases and dissented from majority opinions only twice. In those forty-six decisions, I voted nineteen times in favor of the union or the employee and nineteen times for the employer; eight cases are difficult to classify because the results were ambiguous or mixed in terms of a “pro-business”—“pro-labor” dichotomy.50

  Freedom of Speech Under the First Amendment

  The charges that I was opposed to freedom of speech were entirely based on an article I had written some sixteen years previously. The article opened and closed with admonitions that it was theoretical, tentative, and speculative.51 In the intervening years, I had created a public record in this field, too, but that was ignored by the opposition as if it did not exist.

  In the course of that wide-ranging article, I had argued two points that infuriated the opposition. The first was that of all the functions speech served, only one was different from the functions of other, unprotected, human activities, and that was the discovery and spread of political truth. There was, therefore, I argued, no reason to throw constitutional protection around speech that was not political. I later abandoned that position, not because the observation about the functions of speech was not true, but because it results in an unworkable rule.52 Almost any speech could be made protected by simply adding a policy proposal at the end. Moreover, the discovery and spread of what we regard as political truth is assisted by many forms of speech and writing that are not explicitly political.

  My second contention was that there is no constitutional reason to protect speech advocating forcible overthrow of the government or speech advocating the violation of law. The reason for that conclusion is plain. The Constitution creates a republic
an form of government in which political speech is essential to arrive at consensus on various issues. Majorities make up their minds and either do or do not enact laws. In such a government, speech advocating the forcible overthrow of the government and the seizure of power by a minority has no value because it contradicts the premises of constitu-tional democracy. If the speech succeeds, democracy and individual freedom are at an end. For the same reason, speech that advocates violation of the law or civil disobedience is an attempt to defeat by lawlessness what the majority has decided. In our form of government, everyone is always free to advocate changing the law by the regular legislative processes. Because we are a constitutional democracy, there is one exception to the idea that speech advocating violation of the law is illegal. If the object of the disobedience advocated is to frame a challenge in the courts to the constitutionality of the law, and if the law proves to be unconstitutional, then the speaker may not be punished.

  We may have done at once with the charge that my position would have made illegal the advocacy of boycotts, marches, sermons, and peaceful demonstrations during the civil rights struggle in the South. Customer boycotts are not usually illegal and advocating them would not be. Marches, sermons, and peaceful demonstrations do not involve incitement to break the law and are themselves expressive conduct protected by the first amendment. The suggestion that I thought any of these things illegal was flatly false.53 That leaves the case of Martin Luther King, Jr. Dr. King, so far as I am aware, rarely advocated lawbreaking except in an effort to challenge the constitutionality of the law. When he himself violated a law, he accepted the punishment that ensued, as his Letter from the Birmingham Jail attests.54 There is surely no reason to think it is proper to punish those who violate the law but improper to punish the person who persuades them to do so.