Robert Bork – AJ's Dad

In a pseudonymous essay written as the American colonies moved towards independence, John Adams wrote that a republic is a “government of laws, not of men.” He was contrasting a system with a despotic emperor who is “bound by no law or limitation but his own will.” In contrast, Adams wrote, a republic “is bound by fixed laws, which the people have a voice in making.”

Following Adams, we often proudly proclaim that the United States is a nation of laws, not of men. The Supreme Court is about to begin a new term. This should remind us that it is only partially true that we are a nation of fixed laws. Instead, our laws change through the actions of a handful of people who sit on the Supreme Court.

We have seen dramatic evidence of that recently, but this is not new. Franklin Roosevelt’s plan to expand the Supreme Court was triggered by the actions of Supreme Court men. (We didn’t believe in women justices in those days.) As Jeff Shesol writes in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), between 1933 and 1936, the Court overturned congressional acts at ten times their traditional rate often citing long-neglected doctrines. The Court frequently breathed new life into obscure clauses of the Constitution in order to abolish the democratically enacted laws of the New Deal. Indeed, it was the Chief Justice at the time who made the statement affirming that our fundamental law is a law determined by a few. Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Evans could have said something similar about many of our laws.

It is fair to wonder whether the judges use neutral legal doctrines to alter our law or whether it is their politics or economic viewpoints (or what they ate for breakfast as one legal scholar has suggested). A study a few years after John Roberts became Chief Justice found that the Supreme Court under Chief Justice Earl Warren found in favor of businesses 28% of the time. That rate increased to 48% under the Burger Court; 54% under the Rehnquist Court; and 64% under the Roberts Court. (Justice Antonin Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time. William Rehnquist voted 8% of the time for criminal defendants in non-white-collar crimes, but 62% of the time for white-collar defendants.)

Despite the slogan that we are a nation of laws, it is clear that we do not really believe that. Confirmation battles over Supreme Court nominations demonstrate this. We believe that people who constitute the Court can determine the law. (The myth is that ideological contention over Supreme Court nominations began with Robert Bork, forgetting that the earlier nomination of Abe Fortas as Chief Justice was the first Court nomination to be defeated by a filibuster. As I have written, Bork was not “borked,” but myths continue to live on even when false. See AJsdad.blog of September 3, 2018, “Borked! Really?”)

We have tended to focus on the United States Supreme Court when considering how a few individuals determine our law, but increasingly there are battles over state supreme courts as well. Several decades ago “tort reform” became a political issue. The law of torts governs who should pay and how much when someone is injured. With the claim that recoveries for injuries were harming both the economy and healthcare, business, manufacturers, medical institutions, and insurance companies targeted the nominations and elections of state supreme court judges. Money poured into the selection processes. What had been a backwater of our political system now saw contentious advertising and campaigns because the powerful knew that our laws were not immutable.

Today the battles over state supreme court nominees focus on abortion and gerrymandering. Last spring Wisconsin had a costly election for its supreme court. The court was viewed as equally split between conservatives and liberals, and the newly-elected judge was expected to be the deciding vote on abortion and gerrymandering. Pennsylvania has a similar election coming up this fall.

Even though our history shows otherwise, the statement is still often repeated that America is a nation of laws, not of men. Perhaps the powerless have always known that this is a myth. Thus, a character in James McBride’s new novel The Heaven and Earth Grocery Store utters a truism that goes beyond race: “‘White folks’ laws,’ Nate said softly, ‘The minute you leave the room, the next white fella comes along the law is how he says it is. And the next one comes along and the law is how he says it is.’”

The moneyed and the powerful try to shape supreme courts so that the few can alter the law in ways that the rich and powerful want. And these days, they are often successful.

The conservative lament that Robert Bork was treated unfairly in his nomination to the Supreme does have some validity. Liberals did launch an intensive campaign against the nomination. This campaign may have seemed unprecedented to some, but it did have seeds in previous nominations. It was not unusual before the twentieth century for the Senate to reject Supreme Court nominees. A nominee was turned down as early as 1797, and one in four nominees was rejected in the nineteenth century.

In the first half of the twentieth century unsuccessful campaigns were mounted against nominees Louis Brandeis and Thurgood Marshall. On the other hand, the 1930 opposition to John J. Parker portraying him as a racist and anti-union was successful. However, the reaction to these nominees did not produce the frenzy that would later be seen with Bork. Nevertheless, that frenzy had roots going back to President Johnson’s nomination of Abe Fortas, then an Associate Justice of the Supreme Court, to Chief Justice. There were legitimate issues about Fortas, but the opposition went beyond them. Bronner, after discussing the Fortas controversy, concludes that it was “plagued by partisan politics, ideology, character concerns, and closeness to LBJ.” As partisans often do, some looked for the opportunity to respond, and that came with President Nixon’s nomination of Clement Haynsworth to the Supreme Court. (You can look him up, and G. Harrold Carswell, too.)

The Bork nomination, then, was not the only time partisanship took the stage with a Supreme Court nomination. But the Bork controversy was unprecedented in the media campaign mounted against him. Press and TV ads were not used against other nominees as they were against Bork, and as we see in political advertising today, much that was said so grossly oversimplified Bork’s views that the content was unfair.

Such attacks, however, did not start in the media, but with Senator Ted Kennedy, who on the Senate floor, said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The conservative outrage over this attack increased with an ad by the People for the American Way featuring Gregory Peck. A family gazed at the slogan “Equal Justice Under Law” chiseled on the Supreme Court building while Peck on the sound track, as Bronner summarizes it, “accused Bork of opposing civil rights, privacy, and much free speech protection.” Peck continued, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”

The ad may have been powerful, but it was aired little and probably would have drawn minimal attention. Then a White House spokesman attacked it, and the ad got widespread notice as it was played again and again on news programs, which brought more examination of Bork’s positions. Many came to think that the ad was not really unfair, for Bork had opposed civil rights laws and Supreme Court privacy decisions, and he had announced a position that would drastically limit free speech.

The borked view of history fixates on Kennedy’s speech and sees only partisanship. It cites the Gregory Peck ad and sees simplistic, inflammatory summaries of what Bork believed. It dwells on irrelevancies that come up, such as discussion of his beard and what movies he had rented. But that history ignores Bork’s actual views and how they were explored at some depth by many noted lawyers and scholars before the confirmation vote and at the five days of the Senate hearing, which was akin to a constitutional law seminar exploring Bork’s views. The confirmation process, in fact, was filled with substance. It provided good reasons why Robert Bork should not have been on the Supreme Court.

(Continued on September 7)

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Laws Changed by the Few

Borked! Really? (continued)