Supreme Imposition; Lawlessness on the High Court
Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
Like Humpty Dumpty, the Supreme Court has been making the Constitution and statutes mean whatever it wants them to mean for decades. Robert H. Bork's contribution has been to assail that lawlessness which has been customarily employed to cram the values of an academic and media elite down the throats of the American people. His editing of a collection of essays on the Supreme Court's interpretive waywardness in "A Country I Do Not Recognize" should disillusion any reader inclined to glorify the justices.
Mr. Bork speaks with authority. In 1987, the Senate defeated his nomination to the Supreme Court despite his dazzling credentials: solicitor general of the United States; judge on the U.S. Court of Appeals for the District of Columbia Circuit; and author and professor of constitutional and antitrust law. The academic and media glitterati distorted Mr. Bork's views to make him appear as an advocate of segregation, back-alley abortions, unsafe work places and the subjugation of women.
He was none of the above. What the nominee recognized was that the rule of law in the judiciary and the other branches of government is indispensable to the preservation of all rights. If the process is tainted, then so is the end product.
As Mr. Bork explains, Supreme Court opinions now violate basic standards of intellectual honesty and reason in zealous pursuit of politically correct results. Thus, in Lawrence v. Texas (2003), the high court found a constitutional right to homosexual sodomy by wrenching from the 14th Amendment a right "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." That blather, as Mr. Bork notes, would justify the recognition of a right to "incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity or autonomy," including jihad. The stopping point is not the law, but the values and preferences of the liberal elite.
In his chapter, "Constitutional Law Without the Constitution," Professor Lino A. Graglia of the University of Texas chronicles the train of lawless interpretations that have beset Supreme Court decisions. He questions the legitimacy of judicial review, the power of the Supreme Court to declare actions of Congress, the president and state governments unconstitutional. He argues that the justices are unaccountable to the people, are inexpert policy-makers and are intellectually dishonest and arrogant.
According to Mr. Graglia, the nation would be better governed by unconstrained popular majorities. …