Was Bork Right about Judges?

Article excerpt

The American public first met Robert Bork during the 1987 Senate Judiciary Committee hearing that considered his nomination to the Supreme Court. Compared with more recent judicial confirmations, the Bork hearing was highly dramatic. Most are aware of its outcome, which led to an addition to the English language: "bork"--meaning to "[d]efame or vilify (a person) ... esp[ecially] with the aim of making it difficult for him or her to hold public office." (1) Few are familiar, however, with Judge Bork's distinguished career before that contentious and transformative hearing.

Robert Bork had been a tenured professor at Yale Law School, authored a watershed book that shifted the paradigm of antitrust law and helped make possible our comfortable standard of living, (2) served as Solicitor General of the United States, and worked as a federal appellate judge on the D.C. Circuit, the court on which I now sit. I am reminded of Judge Bork's legacy every time I don my robe. My locker in the robing room is across a narrow aisle from his, which is marked by a brass plate that bears his name. Once robed, I enter a courtroom in which his portrait--a Rembrandt-like rendition of the Judge in which he appears broodingly omnipresent--hangs. He is watching, and that is fine by me.

I first became aware of Robert Bork during my first year of law school. I remember the moment when I pulled Volume 47 of the Indiana Law Journal from a shelf in the library at the University of Virginia and began reading his classic article, Neutral Principles and Some First Amendment Problems. (3) I do not want to make too much of the moment. No heavenly choir or rushing wind accompanied my reading, but I found Judge Bork's approach to the Constitution, and more particularly to the role of judges in our democratic republic, immensely satisfying.

Consider a quick summary of Judge Bork's views, cobbled together from his writings with some editorial license on my part:

   The United States was founded as a Madisonian system, which means
   that it contains two opposing principles that must be continually
   reconciled. The first principle is self-government, which means
   that in wide areas of life majorities are entitled to rule, if they
   wish, simply because they are majorities. The second is that there
   are nonetheless some things majorities must not do ... some areas
   of life in which the individual must be free of majority rule. (4)

In these latter areas, majorities cannot rule, "no matter how democratically [they] decide[] to do [so]. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny." (5) The structure of the Constitution places the all-important "function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary." (6) Placing this function with the courts creates "the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic." (7) For that reason, "[i]t is as important to freedom to confine the judiciary's power to its proper scope as it is to confine that of the President, Congress, or state and local governments. Indeed, it is probably more important, for only courts may not be called to account by the public." (8)

In Judge Bork's view, courts will not confine themselves to their proper (nonpolitical) role as guardians of the delicate balance between majority rule and individual liberty unless they have a firm understanding of the proper scope of judicial power under the Constitution. (9) Here, Judge Bork relies on the seminal article by Professor Herbert Wechsler, Toward Neutral Principles of Constitutional Law,m originally delivered as the 1959 Oliver Wendell Holmes Lecture at the Harvard Law School. According to Wechsler, "the deepest problem of our constitutionalism" is laid bare when courts function as a "naked power organ. …