The Tempting of America / Battle for Justice
Bork, Robert H. & Bronner, Ethan
I n June 1978, concurring with four 1 of his Supreme Court colleagues that the Davis School of Medicine of the University of California had not violated the constitutional rights of Allan Bakke by...
...But it is just here that problems arise...
...In America, however, where bourgeois "formal freedoms" were more strongly entrenched than elsewhere, both on account of the traditions and practices of its people and also in its Constitution, there was never really very much chance of the arrival to power of an egalitarian political movement speaking on behalf of the "exploited masses" or whoever...
...court orders as to where new housing is to be built...
...By the former one means the large-scale social engineering that the American courts have sanctioned in the last two decades...
...As Thomas Sowell has pointed out, "Implicit in Brown from the outset . . . was a substitution of a very different process—one in which children were to be assigned to schools by race instead of without regard to race...
...In the struggle for the Bork nomination, the lines of battle that had by now become a familiar part of the American political landscape since the 1960s were once again drawn up...
...It is doubtful, however, if either they or he would bother to turn up for such a contest, because whatever it may be, it will certainly not be tennis...
...Their rulings were bound by a vague notion of the Fourteenth Amendment as well as the poorly reasoned precedents of recent Supreme Court decisions...
...Presidents can act through Executive Orders, but they too are answerable to the electorate...
...and that Kennedy, Biden, and Metzenbaum are nowhere on the political horizon...
...It is somewhat surprising to find Robert Bork, normally the champion of the prerogatives of democratically accountable lawmakers to effect changes in the law, being so sanguine about the influence of the Brown ruling...
...Could things have turned out differently...
...decisions on the comparable worth of women's work—the courts undertook a vast array of social, economic, and political programs, not one of which was it particularly qualified to accomplish, and for not one of which had it any legislative mandate...
...Bronner echoes the arguments of conservatives who insist that if only Bork had done an "011ie North" he would have made it, as well as those of liberals who insist that if only he had tried to out-Kennedy Kennedy in his passions for rights, social justice, and so on he would have made it...
...And while Bork is overwhelmingly powerful in his criticisms of the Supreme Court when it has, wittingly or unwittingly, served as the battering ram for the second line of attack, he is less convincing when he comes to deal with the first...
...Nonetheless, given the intense pressure he was subjected to, it was understandable that Bork was not able in his testimony to make that vigorous attack on "judicial activism" which many of his admirers expected him to...
...But the only way to be rid of the latter was first to seize political power and then to change the law...
...as well as the intellectual mediocrity and slimy political opportunism of many of his foes like Senator Howell Heflin, who had accused him of enjoying a "strange lifestyle...
...T he Brown v. Board of Education ruling has gone down in American folklore as the noblest exercise in judicial activism...
...As for Bork's attempt to pass himself off as a moderate, Bronner sharply concludes that "It opened up the administration and Bork to a charge of deception...
...Injustices will have to be perpetrated for the time being so that justice can prevail later...
...Which means the preservation of the laws "in their majestic equality," as Anatole France would not have them, rather than laws which prescribe results, as Robert Bork's enemies would have them...
...It was disgraceful that it had not been done decades earlier...
...The laws, in their "majestic equality," are like the rules of a game...
...the alacrity with which the left mobilized against him...
...The stakes were very high...
...Now, as a matter of fact, Anatole France had got his philosophy of law right...
...it was nonetheless odd to hear them coming from the mouth of a Justice of the Supreme Court of the United States—supposedly one of the nine wisest men in the land...
...that Bork's book is a bestseller...
...For in "society," as in any game, there will be winners and losers and hence inequality...
...In much the same manner one can "fix" the laws under which we live in such a way that some people will always be assured of coming out on top, but the common human endeavor would no longer merit the designation "society...
...determinations as to how many tax dollars it is appropriate for a school district to spend on a child's education...
...The judge could hardly declare in his testimony that he did not intend to be bound by Supreme Court precedents...
...What is at issue are those "formal freedoms" that are enshrined in the Constitution...
...But this was only to be expected...
...It was of course this very "right of privacy" that would form the basis of the Roe v. Wade ruling striking down as unconstitutional state laws banning abortion (yet another endeavor suddenly discovered to be a fundamental right...
...T he failure of Robert Bork to get on the Supreme Court is a great national loss...
...It reappeared in the Bowers v. Hardwick case of 1986 when the right to engage in homosexual sex was just one vote short of also being declared a fundamental right of the American citizen...
...But once de jure segregation was eliminated, de facto segregation nonetheless remained...
...22.50 George Szamuely THE AMERICAN SPECTATOR FEBRUARY 1990 43 to do that, no one would want to take part...
...It was not difficult to show that conditions were unequal in the two sets of schools...
...In his logical reasoning Blackmun's argument sounded remarkably similar to the notorious old Communist omelette and eggs apologia...
...What is the loss of freedom of one today when set against the gain of freedom for so George Szamuely, a former associate editor of the Times Literary Supplement, is a writer living in New York...
...Both men then subscribe to the notion that inequality is in some way synonymous with injustice and that therefore the laws which allow such a state of affairs to come into being are in some fundamental way unjust...
...Today, such arguments sound silly.With a Democrat-dominated Senate, and a presidency severely enfeebled by the Iran-contra affair, Bork's chances were pretty slim from the beginning...
...they define the conditions under which play is possible in such a way as to facilitate it, not so as to prescribe who will win and who will lose...
...In other words, it was the fact of inequality that came to be seen to be in violation of the Fourteenth Amendment...
...Consequently in the United States one would have to make believe that a change in power relations has taken place...
...that association with the ACLU helped do in Dukakis the following year...
...The term "judicial activism" and the name of Robert Bork will forever be intertwined...
...The way out of this should have been to outlaw segregation...
...Obviously not...
...Boris Becker happens to be the best tennis player in the world, but one could change the rules of the game in such a way that every reader of The American Spectator, say, would be assured of victory over him...
...Would America's future, in other words, be decided by a left-liberal elite or by a largely conservative majority...
...What is surprising is that Bork's supporters should have been so surprised by it...
...And in order to treat some people equally we must first treat them differently...
...Law sanctioned the perpetuation of injustice, certainly...
...America's two-decade old social experiment would be wound down...
...Rights would come to mean the rights of free citizens with duties and responsibilities, not individual interests or group entitlements or rights to "be let alone," in Justice Blackmun's eminently forgettable phrase...
...The great egalitarian political movements of the contemporary era never paid that much attention to law as such...
...To their enemies, the "formal freedoms" of the bourgeois order have never really been worth having, first, because they generated inequalities and hence a sense of self-esteem that was dependent on others and, second, because they were not the freedoms of one's dreams and longings which, need44 THE AMERICAN SPECTATOR FEBRUARY 1990 less to say, are thought to be sexual in nature...
...But one would probably say blacks were, even though what one really meant was that blacks were enjoying facilities vastly inferior to those of whites...
...What is the use of everyone enjoying the equal protection of the laws if everyone was not also enjoying equality...
...Nor did he accede to the simple-minded notion that the Fourteenth Amendment applies to women in the way he considers it does to blacks...
...In his new book, The Tempting of America, he more than makes up for it...
...Thus when President Reagan nominated him to be Justice Powell's successor on the Supreme Court in June 1987, it was hardly surprising that the opposition to him was so fierce...
...The anguished cry of the poet Anatole France and the sober reasoning of Justice Harry Blackmun express the same sanguine view that the equal protection of the laws should be done away with since they sanction the continued existence of inequality, whether between rich and poor or between white and black...
...As Anatole France had famously put it—in words approvingly quoted straight from Bartlett's by Senator Edward Kennedy during the Bork confirmation hearings—"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread...
...He not only presents here a history of judicial activism, starting back almost at the time of the framing of the Constitution, he combines it with a vigorous restatement of his case for returning to an "original understanding" of that document as well as a convincing refutation of the opponents of this method of judicial reasoning...
...Sweeping busing programs...
...Ethan Bronner's Battle for Justice gives a very useful and fair account of the entire nomination from its beginning to its wretched end...
...There was a good reason for this similarity...
...The best one can say is that Justice Anthony Kennedy has turned out to be a good substitute...
...In a democracy laws cannot be changed unless a majority so desires it...
...be discovered lying...
...There was, of course, nothing startling in these words...
...hidden within the Constitution which none of the framers had dreamt of placing there—would be overturned...
...For the Marxists, it was something the strong imposed on the weak, the owners of the means of production on their employees...
...At the same time Bronner exaggerates the extent of Bork's "confirmation conversion...
...Court-mandated desegregation soon enough became court-mandated enforced integration, or busing—and all of it flowing from the Brown opinion that held that "separate educational facilities are inherently unequal...
...Bork would have done away with this psychological mumbo-jumbo and had the court declare that segregation was inherently unequal and hence in violation of the Fourteenth Amendment...
...Segregation, an American national scandal and a source of international embarrassment, was brought to an end by the actions of nine wise men...
...Bork himself commends the ruling as a "great and correct decision," though he does have some fun ridiculing Justice Warren's opinion that segregation was wrong because modem findings have allegedly discovered that it "generates a feeling of inferiority as to . . . status in the community that may affect . . . hearts and minds in a way unlikely ever to be undone...
...If Bork's concept of the "original understanding" of the Constitution were to become an essential ingredient in contemporary judicial reasoning, then Justice William Douglas's famous "penumbras formed by emanations'L-by which all kinds of fundamental rights could...
...Legislation merely ensuring equality of opportunity would havefreed America from all the troubles that the Equal Protection Clause created...
...That leaves the judiciary, filled with lifelong appointees and answerable to no one...
...At the same time hostility to the bourgeois order is no less manifest here than anywhere else...
...Needless to say, truth was an early casualty...
...Would one say for instance that whites in the South were being denied the "equal protection of the laws...
...whites in white districts...
...The bourgeois order hence was neither prescriptive enough nor permissive enough...
...the disastrous advice to which he was subject from, among others, Lloyd Cutler, that led to his being presented as a "moderate," someone in the "judicial mainstream," a worthy successor to Justice Lewis Powell, who had acted as the so-called swing vote (ensuring majorities,for instance, against the hapless Allan Bakke...
...The book is at its best when dissecting the absurdity of Justice Douglas's arguments in the Griswold v. Connecticut case, whereby he claimed to have discovered a "right of privacy" within the Bill of Rights that no one had hitherto realized was there and thus arrived at the conclusion that the right to use contraceptives was a fundamental right of the citizen...
...Most of Robert Bork's intellectual career had been devoted to attacking the judiciary's usurpation of the prerogatives of democratically accountable legislatures...
...This was precisely the kind of accusation that would offer waffling senators a hook on which to hang their rejection...
...22.50 BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA Ethan Bronner/W...
...I n June 1978, concurring with four 1 of his Supreme Court colleagues that the Davis School of Medicine of the University of California had not violated the constitutional rights of Allan Bakke by denying him admission on account of his not being a member of the right racial minority, Justice Harry Blackmun declared that "in order to get beyond racism we must first take account of race...
...many tomorrow (with that date, needless to say, receding into the ever more distant future...
...Blacks attended schools in black districts...
...W. Norton/399 pp...
...Moreover, Bork's notion of the "original understanding" is likely to be an important matter of debate in the coming years...
...court-imposed hiring practices...
...The amendment talks of the "equal protection of the laws" and it is not immediately obvious that anyone was actually being denied that...
...H istorically, the "formal freedoms" of bourgeois society—despite all the prosperity they helped bring about —have been vulnerable to the charge that they also generated inequalities and hence injustices...
...It would allow them to say that Bork's integrity and predictability concerned them more than his ideology...
...But his words expressed the same irritation and frustration with the "formal freedoms" of bourgeois society that Marxists, among innumerable other species of radicals, have always shared...
...Not that Blackmun was a Communist or a Communist sympathizer or anything like that...
...If they were THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW Robert H. Bork/The Free Press/432 pp...
...Along the way he records most of the disgraceful slanders that were perpetrated against Bork...
Vol. 23 • February 1990 • No. 2
