The Supreme Court 2000: A Symposium
Robert H. Bork
At the end of this past term, the Supreme Court produced mixed results, but the results were mostly bad from a conservative point of view. And that is the way we must judge the Court these days, not in terms of constitutional reasoning, but in terms of ideology and politics, for that is all the liberal bloc has left US.
At least the Supreme Court this past term made one thing clear: constitutional law is useless to study and impossible to teach. Given its present performance, it ought also not be tolerated. It used to be that when a term of the Supreme Court came to an end, analysts gathered to pick over the bones of the decisions, looking for a shift in doctrine here, a hint of the future there. No longer. The near universal contempt for the Court's work by professors and lay analysts alike is little short of stunning.
Professor Jeremy Rabkin's article "A Supreme Mess at the Supreme Court" (Weekly Standard, July 17) is, if not entirely typical, close enough to the common reaction to be encouraging. The time for tut-tutting is past. Perhaps we are learning that what was within living memory an intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that.
Though we speak of the left's "long march" through the institutions of bourgeois democracy, we do not usually recall that one of the most important of those institutions captured by the left, not quite completely but very nearly so, is the Supreme Court. For the last half century the Court has been a revolutionary force in American culture and politics. In this it is abetted by some state courts applying state constitutions, which are unreviewable by federal courts. One has only to recall the Hawaiian and Vermont courts that found in their constitutions the right to same-sex marriage. But the federal courts, and particularly the Supreme Court, have taken the lead in remaking America.
To cite only a few instances, there have in other terms been decisions redefining the family, altering the composition of state and federal legislatures, striking down restrictions on contraception in the course of creating a right of privacy, protecting pornography, adopting rules rendering it virtually impossible to prosecute obscenity, refusing states the authority to support all-male military academies, creating special rights for homosexuals, limiting school disciplinary procedures, banishing religion from public life, protecting foul language in public as well as speech advocating violence and overthrow of the government, and, of course, inventing a right to abort.
The long march continued during the recent term of the Supreme Court. Missouri's limit on statewide campaign contributions was upheld over First Amendment objections in order, among other things, to equalize political power (Nixon v. Shrink Missouri Government), while nude dancing, in this case prohibitable, was entitled to considerable protection as "expressive" behavior (Erie v. Pap's P.M.). Yet the Court struck down student elections permitting speech that might be used for prayer prior to high school football games (Santa Fe School District v. Doe). At some point, parody is the only appropriate response. Theodore Olson, a leading Supreme Court critic, was prompted to suggest that the students should dance nude before the games since naked dancing is preferred to prayer as a form of expression.
Santa Fe School District showed two prominent aspects of the Court's non-constitutional value system; though it invoked the Establishment Clause, the decision ran directly counter to that clause's historical meaning and, for good measure, demonstrated deep suspicion of "majoritarian" decisions. Chief Justice William Rehnquist's dissent justly observed that the majority opinion was "bristling with hostility" toward religion. The militant secularism, itself a religion established by the Court, was an instance of leveling since some students might be "offended" if prayer took place. …