Originalism: The Supreme Legacy of Judge Bork
By Stone Washington
21 December 2016
Judge Bork before the Senate Judiciary Committee on his failed Supreme Court nomination July 1, 1987)
“If revisionists can ignore the most solemnly and democratically adopted text of the Constitution and its Amendments… on the basis of current values, what possible basis could there be for enforced adherence to a legal decision of the Supreme Court”
~ Antonin Scalia, former Supreme Court Justice.
“The notion that Congress can change the meaning given a constitutional provision by the Court is subversive of the function of judicial review; and it is not the less so because the Court promises to allow it only when the Constitution is moved to the left.”
~ Robert Bork, former Federal Circuit Court Judge
This essay seeks to pay homage to the recent passing of Justice Scalia and the now four-year anniversary of Judge Robert Bork’s death (December 19th 2012) by examining Bork’s unrivaled philosophy of judicial precedent: “Originalism” or “Original intent”, in the Supreme Court. The essay will examine Bork’s philosophy best articulated in his 1990 book: The Tempting of America. In order to truly honor and uphold the judicial integrity of the Supreme Court in the modern day, it is essential that throughout his upcoming 4-8 years in Office for President-elect Donald Trump to nominate Supreme Court Justices dedicated to upholding the written intent of the Constitutional framers. In other words, any incoming Justices under Trump must prove themselves worthy to carry on Scalia’s legacy by passing the “Bork test”, in proving themselves to be tried and true arbitrators of Originalism in the Court.
Background to Bork
Robert Heron Bork was born on March 1, 1927, in Pittsburgh, Pennsylvania to Harry Philip Bork, Jr. (1897–1974), a steel company purchasing agent, and his wife Elisabeth (née Kunkle) (1898–2004), a schoolteacher. For college, Bork attended the Hotchkiss School in Lakeville, Connecticut, along with receiving a Bachelor’s and law degree from the University of Chicago where he would serve on the law review. Bork briefly served in the United States Marine Corps, and later began practicing as a lawyer in 1954 at Willkie Farr & Gallagher LLP in New York. Bork later would teach as a Professor at Yale Law School from 1962-1981 (except 1976) where he taught many prominent students including: John R. Bolton, Bill Clinton, Hillary Clinton, Robert Reich, Jerry Brown, and Anita Hill.
Bork served as Solicitor General in the U.S. Department of Justice, the third highest position in the Department of Justice, from 1973-1977. Bork’s duty as the Solicitor General was to represent the federal government before the Supreme Court of the United States, determining the legal position that the United States will take in the Court. Bork would have the honor of being nominated by President Ronald Reagan and confirmed with unanimous consent voice vote by the Senate to the United States Court of Appeals for the District of Columbia Circuit from 1982-1988.
Judge Bork’s judicial philosophy has been defined as arguing from a strict-constructionalist or “Textualist” position, also known as Orginalism, which emphasizes the importance of the original intent of the Constitutional Framers including their philosophical, political, legal intent in drafting America’s founding laws. Bork repeatedly reiterates in his decisions and written works that it is a court’s task to adjudicate not to do what many jurists are guilty of in the method of creating laws in cases based on the act of “legislating from the bench”.
Bork served as a Federal judge in the Circuit Court at the same time as Justice Antonin Scalia, who would later be promoted by President Reagan to fill the void in the Court after William Rehnquist became Chief Justice in 1986. On the Circuit court, Scalia and Bork held the same position for many decisions they faced, including: Dronenburg v. Zech, where Bork and Scalia rejected the appellant (Dronenburg) through critiquing the line of Supreme Court cases upholding a right to privacy, against Dronenburg’s argument that his privacy had been violated because he was discharged from the Navy for homosexual conduct.
President Reagan nominating Judge Bork to the Supreme Court (July 1, 1987)
The Supreme Court and the Temptations of Politics
Judge Bork begins his magnum opus book, The Tempting of America (1990), by exposing the root of corruption within the Supreme Court—the temptation of Judges “legislating from the bench”, which Bork emphasizes is becoming more prevalent in America’s judiciary as time passes. A modern-day trend of left-leaning Justices on the Supreme Court is to arrogantly and unconstitutionally take into their hands the direction of legal precedent and transform favorable legal decisions into policy initiatives toward political gain for Democrats in the federal government. Bork defines the political temptation and seduction of the law thusly—
“Distinguished or not, the habit of legislating policy from the bench, once acquired, is addictive and hence by no means confined to constitutional cases. The activist or revisionist judge, as we shall see, can no more restrain himself form doing “good” in construing a statue than when he purports to speak with the voice of the Constitution.”
Bork traces the history of this overstepping of judicial authority back to the Chief Justice John Marshall Court (1801–1835) with the creation of Judicial Review in the land-mark Supreme Court case of Marbury V. Madison (1803), a seminal case that my father, Professor Ellis Washington has written extensively about. This was the first and only case in which the Marshall Court ruled an act of Congress unconstitutional, and thereby reinforced the doctrine of judicial review, where courts are granted the power of invalidating laws and Executive or Legislative decisions that are deemed incompatible with a higher authority of the Constitution. Bork explained Marbury V. Madison as thus, “an essay resting the power to invalidate statues of Congress on the original understanding of the Constitution and yet reaching the question of that power without justification”.
Although Marbury’s case had no jurisdiction in the Supreme Court (the case was supposed to be treated under an appellate jurisdiction according to Article III of the Constitution), Marshall delivered a long opinion in favor of Marbury via a writ of mandamus, which Bork deems as unwarranted due to the fact that Marshall wrongfully expanded the jurisdiction of the case beyond an appellate-based precedent. Hence, Marshall enforced the statue for Marbury’s benefit, safeguarding former President John Adams midnight packing of the Supreme Court prior to Thomas Jefferson’s first term in Office while, more importantly, vastly enhancing the authority of the Judicial branch of government above the Executive and Legislature through Judicial Review.
Within various landmark Supreme Court cases throughout the 19th and 20th centuries involving unwarranted legal decisions inspired by political motives, Bork reminds his readers that only a handful of legal scholars and jurists have rightfully condemned such crony methods. One such instance was with Associate Justice Benjamin Curtis of Massachusetts who dissented in Dred Scott V. Sanford (1857) during the time of Chief Justice Roger B. Taney, who was notorious for being hellbent on proving that the Constitution safeguarded the right to own slaves as property in America arguing, “the negro has no rights that the white man is bound to respect.” Curtis’s argument was as such,
“Political reasons have not the requisite certainty to afford the rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their views of what it ought to mean.”
The case held that a negro, whose ancestors were imported into the U.S., and sold as slaves, regardless of being enslaved or free, could not be recognized as an American citizen and therefore had no standing to sue in federal court (as Dred Scott had); a classic example of judicial review run amok. The case also decided that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States. The case was perhaps the nail in the coffin toward safeguarding slavery as permissible under the law during the 19th century and as some historians warned four years later would ‘lit the fuse’ of the Civil War (1861-65).
Bork then shifts his attention to the New Deal Era Supreme Court in response to a major expansion of federal government power under FDR during the Great Depression in the U.S. The Supreme Court affronted many of FDR’s expansive policies had struck down including the Agricultural Adjustment Act of 1933 Railroad Retirement Act of 1934, and the Bituminous Coal Conservation Act of 1935. Bork described the New Deal as such,
“The New Deal was an economic and governmental upheaval. It stood for a sudden and enormous centralization of power in Washington over matters previously left to state governments or left in private hands, a centralization accomplished largely though the assumption of greatly expanded congressional powers to regulate commerce and lay taxes. Many judges however believed that the New Deal was assuming powers far beyond those the Constitution permitted. There was thus a collision between an emergent Zeitgeist reflected in the political branches, and the old ideas, entrenched in the courts, that was regarded by both sides as a constitutional crisis.”
Bork compares this constitutional assault to the previously explained judicial catastrophe established by the John Marshall Court through implementing judicial review to offset the balance of power among the three branches of government. Bork mentions the significant role of Associate Justice Owen Roberts apparently shifting political partisanship in the court to vote with the conservative-leaning jurists, known as the Four Horsemen, seeking to defend the integrity of the court from FDR’s socialist policy in his court reform (also known as the “court-packing plan”), which would have expanded the size of the Court bench up to 15 justices.
In his book, Bork explores other instances of politicization of the law including within that of Chief Justice Earl Warren, which Bork warned was so severe and massively corrupt that it would take up the entirety of the book to exploit in full. Bork exposes a major repercussion of such Progressive courts, such as the Taney court, for creating the destructive process of substantive due process defined by Bork as “an extraordinarily deceptive and therefore powerful means by which judges can embed their notions of public policy in the Constitution without appearing to do so”. Bork criticizes the landmark case: Brown vs. Board of Education (1954) as being a politicized controversy that belonged in the hands of state legislators, and thus accomplished judicial supremacy for the Court, “The Court is virtually invulnerable, and Brown proved it. The Court can do what it wishes, and there is almost no way to stop it, provided its result has a significant political constituency.”
The Philosophy of Originalism and Bork’s Rejection
Judge Bork’s philosophy of Originalism is a judicial understanding that is essential toward properly interpreting and enforcing the law under the parameters of the federal government. On the philosophy of Originalism Bork states,
“In truth, only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American Republic”, Bork continues, “The philosophy of original understanding is capable of supplying neutrality in all three respects-in deriving, defining, and applying principle.”
Bork stood immovable upon the basis of Original understanding even following his Supreme Court nomination by President Reagan, which ultimately doomed his confirmation to the Court before an unprecedented level of opposition headed by Senate Democrats, most notably: Ted Kennedy, Joe Biden, and Howard Metzenbaum. These and other Democrats associated with ultra-liberal organizations including, Planned Parenthood, the NAAP, and the ACLU ran hundreds of defamatory TV attack ads, hateful newspaper editorials, cynical political cartoons, and various indoctrinated radio ads and pamphlets to neighborhoods across the nation. Kennedy delivered these infamous lying words on the Senate floor shortly after Bork was nominated:
“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 citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy”
Bork being interrogated by Senate Judiciary Committee Chairman Joe Biden, October 23, 1987.
Bork was ultimately defeated by a vote of 58 to 42, the largest margin in Senate history. Judge Bork and his family stood faithful and brave before the harsh attacks and smear tactics of the many liberal Senators and interest groups seeking to derail Bork’s ascension to the Court. The nomination was such a nation-wide controversy, that Bork’s name became recognized as a verb by many politicians in Washington, in regards to the dangers of overbearing partisan opposition. Bork’s reference as a verb was notably used by Leftist feminist Florynce Kennedy addressing a conference on the importance for liberals to mobilize and block the nomination of Associate Justice Clarence Thomas to the Supreme Court, saying, “We’re going to bork him. We’re going to kill him politically … This little creep, where did he come from?” Thankfully, Thomas was subsequently confirmed after one of the most divisive confirmation hearings in Supreme Court history.
In conclusion, truly the treachery of the left runs deep in all three branches of government, especially with the politicization of the Supreme Court which Alexander Hamilton and the Founding Fathers initially regarded as weak in comparison to the other branches of government, stating in Federalist Paper no. 78,
“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
With the political temptation and assault by Progressive jurists and presidents over the centuries, the Supreme Court has grown in power and significance exponentially. In the 2016 Presidential Election, a major exponent of President Donald Trump’s follower base was due to the high hopes placed in him packing the Court with 1 or more conservative-leaning Justices. Now with Republicans holding Majority in both houses of Congress and the Executive, it is imperative now more than ever for President Trump to appoint a Justice/s who exemplify the original intent of the Constitutional Framers as established and practiced by Judge Bork and Justice Scalia. Truly, now more than ever, America needs Constitutional jurists who have honored and defended America’s founding documents and swear to uphold the rule of law in the most prosperous Democratic Republic in History: The United States of America, and will undue the many Court politicized court cases crippling the legal integrity of the Courts perpetuated by Liberal Progressives through the ages.
N.B.: This essay is based in part on The Tempting of America: The Political Seduction of the Law, by Robert H. Bork, (The Free Press 1990).
Category: Socrates Corner