The late Robert Bork was the guru of the conservative theory of “judicial restraint.” He wasn’t its originator; that theory traces back to the Progressive era. But it was Bork who taught it to conservatives and became the leading spokesman for the idea that “judicial activism” was a major structural problem of the liberal political machine. But he did not merely argue that courts were doing something unduly extreme. Rather, in his view, the very institution of judicial review was a usurpation. In The Tempting of America, he argued that Marbury v. Madison, often mistakenly called the origin of the courts’ power to declare laws unconstitutional, was wrongly decided, and that courts should not have this power at all.
This was a very remarkable argument, since even such extreme spokesmen for judicial restraint as Oliver Wendell Holmes recognized that the principle of judicial review is part of our Constitution. Yet Bork criticized Holmes for this, arguing that he hadn’t gone far enough in his Lochner dissent, because he’d still said that there might be some laws so arbitrary and unjustified as to exceed the legitimate powers of legislatures. Holmes, the godfather of “judicial restraint” if there ever was one, wasn’t restrained enough for Bork.
Even more remarkably, Bork claimed to base his anti-judicial review position on “original intent,” even though the authors of the Constitution made clear that they understood and meant to incorporate judicial review into the fundamental law. It’s mentioned in The Federalist. Madison discussed it in his speech introducing the Bill of Rights in Congress. Bork and his followers have labored to obscure these facts, but the historical record proves beyond dispute that judicial review predates the Constitution by centuries, and that courts were expected to protect what Bork called “unenumerated rights”—rights not explicitly referenced in the Bill of Rights—against violation by the government. Remember, between 1788 and 1791, there was no Bill of Rights. Did the founders, then, think there were no rights for courts to protect during those years? Of course not. More, under the unwritten British Constitution the founding fathers grew up studying, all rights were “unenumerated.” Yet British and American courts had protected such rights nevertheless, declaring them to be part of the “law of the land,” which even the King could not violate. Of course, even the term “unenumerated” is inaccurate. The Constitution does specifically protect “liberty,” so that even the allegedly “unenumerated” freedoms conservatives typically reject actually are enumerated.
But the bottom line was that Bork was opposed not to “judicial activism,” but to the principle of judicial review itself. His extreme blend of relativism and majoritarianism led him to condemn the idea that courts could declare anything beyond the legislature’s purview. Bork envisioned courts, not as a co-equal branch, one-third of the checks-and-balances system, but at most as a handmaiden of the legislature, which should act to enforce the will of the majority—which he thought “has the right to rule simply because it is a majority.” That premise—the exact opposite of what the Founders believed—certainly is incompatible with any robust conception of judicial review.
Bork thought that judicial activism was imposing the moral views of Washington elites on the people of America, sometimes for good motives, but nevertheless putting the rule of law at risk. To make this point, he was fond of quoting a passage from Robert Bolt’s A Man for All Seasons in which Sir Thomas More resists the demands of his son-in-law Roper, to arrest a bad man in violation of legal principles:
More: What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More:...Oh?...And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat?...This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—...d’you really think you could stand upright in the winds that would blow then?
What’s bewildering about Bork’s use of this quotation is how much it proves the exact opposite of his point. More is not intending here to enforce the will of the majority, but to resist it. The majority is represented here by Roper, not by More. And this resistance is not based of any statutory law passed by the Parliament; it rests on More’s enforcement of unwritten principles, established by independent judges such as himself. Indeed, More is speaking here of enforcing law-of-the-land rights, the theory we today refer to as Substantive Due Process, and which was Bork’s bête noir. Throughout his book, Bork’s argument is analogous to Roper’s, not to More’s. More is being a “judicial activist” in this scene.
By making war on the principle of independent judicial review—a principle as essential to the Constitution as the separation of powers or checks and balances—Bork was doing much more than attacking any particular court decision or even a particular jurisprudential theory (liberal versus conservative, or some such). He was instead attacking the very principle of an independent court system. Why? To get at the Devil, as Bork saw it—i.e., liberal elitist morality imposed by judges, and particularly Roe v. Wade. Conservatives in general have followed him, attacking “judicial activism”—preferring judicial passivity—in order to get at Roe v. Wade. But as More would say, where would these conservatives hide, the courts all being flat?
Judicial review is a key to forcing our government to operate subject to the law, instead of above the law. Cutting down judicial review would leave every one of us exposed to the daunting, irresistible power of shifting, unpredictable legislative majorities. That is why the founders believed independent courts so essential. “It is a just observation, that the people commonly intend the PUBLIC GOOD,” wrote Hamilton, “but their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do.” Courts exist to serve as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Without judicial review, without an engaged judiciary, the Constitution’s promises of security would be valid only so long as the legislature chose to abide by them, and the instant the legislature chose to violate them, they would be rendered worthless. Where would we be with a judiciary as restrained as Bork and his followers (such as Judge Wilkinson) would have them? In fact, we’ve had a bit of a taste of it. It was the conservative rhetoric of “restraint” that gave us the 2012 Obamacare decision, in which Chef Justice Roberts upheld the ACA as an act of “judicial modesty.”
The conservative campaign against “judicial activism” is, in reality, one of two things: either it is only a way of complaining about particular decisions they don’t like, or it is—as in the case of Bork, or Judge Wilkinson—a much more consistent, and much more dangerous, call for the end of any meaningful judicial check on the other two branches of government. And where would we all hide, the rule of law all being flat?
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