Judicial Activism; American Courts Join Culture Wars

Article excerpt


The U.S. Supreme Court's discovery this summer of a constitutional right to the enjoyment of sodomy can have surprised only the very, very easily surprised. Less surprised than most, we have to assume, was Robert H. Bork, who understands the high court's philosophical premises better than almost anyone else thinking and writing about the interplay of law and culture.

Mr. Bork has pretty well figured out what's coming at us down the pike whenever the court takes up a case involving claims to new rights. The middle-class majority, with its old-fashioned norms and moral commitments, is likely to get clobbered - for reasons similar to those adduced by the court majority in the sodomy case, Lawrence vs. Texas.

Just as Mr. Bork makes plain in this terse, telling literary assault on judicial imperialism, judges all over the Western world have joined the cultural war on the side of the left. They have indeed more than joined it. On particular fronts the courts have taken command. Judicial activism, on Mr. Bork's showing, has subverted the rule of law.

"If we do not understand the worldwide corruption of the judicial function," he writes, "we do not comprehend the full scope of the political revolution that is overtaking the West. The political revolution in Western nations is the gradual but unceasing replacement of government by elected officials with government by appointed judges . . .

"The political revolution brings with it a cultural revolution. In reading the opinions of many judges, it is apparent that they view their mission as preserving civilization from a barbarian majority motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like." What the courts are substituting for old-fashioned moralities is "cultural socialism."

This is stout stuff, and the reader may rely on Mr. Bork - a trenchant, unsentimental analyst - to produce the evidence. Mr. Bork, who is presently an American Enterprise Institute senior fellow, delivered his manuscript prior to the court's June 2003 onslaught against opposition to gay rights and that which is pleasantly known as "affirmative action." If anything, the two cases render the appearance of "Coercing Virtue" all the more timely, as showing what the court was up to and how it happened.

His second chapter, on the growing tendency of American courts to reason from international law as well as the Constitution, has a terrible relevancy in the sodomy case. …