Responding to Reader Comments on Bork

     The thoughtful comments to my postings on why Robert Bork's nomination to the Supreme Court was not confirmed deserve what is hopefully an equally thoughtful response. 

     Dave disagrees with my posting on two counts.  First, in his opinion

Judge Bork was rejected for his views on abortion. Nothing more, nothing less.

     If this were the only reason for opposing Bork's elevation to the Supreme Court then Dave is correct – it was wrong for the Senate to have failed to confirm him.  Reasonable people can disagree about the correctness of Roe v. Wade – there are plenty of legitimate legal arguments supporting either position – and if this were the only objection to his confirmation then President Reagan should have been permitted his choice for the Court. 

     Dave also challenges the idea that there is more than one legitimate type of legal argument, specifically suggesting that conflicts between text and intent are rare, that intent always controls precedent, and that tradition may be a cultural consideration but not truly a valid legal argument.  I won't repeat all of my arguments for the theory here – BUY THE BOOK!!! – but imagine for a moment that you have hired an attorney to defend you in a critically important case – you may lose everything if you don't prevail – and this particular lawyer only makes intent arguments because he believes that they are the only kind of argument that really matter.  For example, if this were a case that turned upon the meaning of a statute and your lawyer didn't cite judicial precedent in your favor you would be justified in being very displeased.  More seriously, if your attorney made no attempt to distinguish precedent that goes against you and simply argued that the cases were wrongly decided and should be overruled because they conflicted with the intent the legislature you would be well advised to find another lawyer.  Clearly intent is one argument that a good lawyer should make, but it is not the only one.  A lawyer must also parse the text of the statute, review the legislative history, carefully analyze all of judicial precedent invoking the statute, describe how people have understood this statute and behaved under it for years or decades, and finally, your lawyer had better make a "policy argument" – that is, your lawyer must explain to the court and the jury what the purpose of the law is and why it is necessary to interpret the law in a particular way in your case.  Dave, Robert Bork uses only one of these types of arguments in interpreting the Constitution.  He doesn't use – in fact he has for decades expressed contempt for – any of the other types of arguments.  You wouldn't accept this from a lawyer in a traffic case, much less a justice of the Supreme Court in a case involving the interpretation of fundamental rights.

     I wish to acknowledge that I am not the only legal scholar who recognizes that there are different types of valid legal arguments.  Years before I wrote on the subject Phillip Bobbit of the University of Texas identified six different ways of interpreting the Constitution; passages from Robert Jackson's opinion in Youngstown Sheet & Tube and Oliver Wendell Holmes, Jr.'s opinion in Missouri v. Holland clearly reflect their awareness of the different approaches to constitutional interpretation; and Benjamin Cardozo in his masterpiece The Nature of the Judicial Process (1921) expresses the concept of the different types of legal argument beautifully:

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the cauldron of the courts, all these ingredients enter in varying proportions.

     The theory of the different types of legal argument is descriptive, not prescriptive.  I and others have merely described what lawyers do, not what they should do.  But when a lawyer or a judge like Robert Bork insists that there is only one type of legal argument and that other types of arguments are "illegitimate" you should be suspicious.  There are legal scholars on the left wing who adhere only to policy arguments and who have no respect for text, intent, precedent, or tradition.  I wouldn't want them on the Supreme Court either.

     N.E. Frye makes a diversity argument in favor of Robert Bork:

If it's a good thing for the court to have the balanced view resulting from the inclusion of Latino women, blacks, other minorities, would not the overall impact of Bork's impact have been more balance and hence a good thing?

     I agree with Frye that balance is a good thing, but I think that the reason we want balance is not simply so that each justice will express the views of some segment of our society but so that the justices will listen to each other.  As talented as Bork was and is, he does not strike me as a fellow who is interested in hearing what anyone eles has to say.  For example, take the "don't ask – don't tell" case that the Supreme Court will eventually have to decide.  I don't mind arguing about what the text of the Constitution means in that context, what the intent of the framers was, what judicial precedent requires, what our traditions have been with respect to military service, and what the larger purposes of the Constitution are – what "liberty" and "equality" mean in this context.  I would be happy to argue any and all of those points with you or anyone else.  But for Robert Bork, most of those arguments are illegitimate.  For him, the Bill of Rights was "a hastily drafted document on which little thought was expended."  The only evidence that he would consider as to the meaning of the Constitution in that or any other case is what society was like – what laws they had and what practices they followed  - when the Constitution was adopted.  In my opinion, Bork would not have contributed to "balance" in the sense of adding anything to the discussion.  He just doesn't have anything to say about text, precedent, tradition, or policy.

     Frye also points out that intent is a major consideration in contract law, and he is correct about that.  The intent of the parties to a contract is the principal tool for interpreting the meaning of any contract.  My only response to that is that the strength of "intent" arguments varies depending upon what type of legal document we are interpreting.  Intent is the principal consideration in the interpretation of contracts and wills, where the whole purpose of the exercise is to determine the intent of the parties or the intent of the testator.  It is also the touchstone for statutory interpretation as the courts attempt to divine the intent of the legislature.  But even in these areas intent may be trumped by other considerations.  For example, if the parties to a contract wrote one thing but for many years behaved as if the contract meant something else, the courts might find that the text of the contract had been modified by a course of performance (tradition).  Or if a court had interpreted a statute (wrongly) forty years ago but the statute had never been amended a modern court is not likely to overrule the precedent simply because the initial court got it wrong – in fact, the principle of stare decisis is extremely strong in the field of statutory interpretation – precedent almost always trumps text and intent in that circumstance.  In the field of Constitutional Law where the framers who lived in vastly different societies a century or two centuries ago drafted language broadly protecting "freedom of speech," "free exercise of religion," "liberty," equal protection," and "due process," the interpretative technique of "original intent" is correspondingly weaker than it is in the case of a specific and recently drafted contract or a statute where evidence of intent is both more accessible and more relevant to the precise question before the court.

     Quidpro expresses admiration for Bork's attempt to depoliticize constitutional law through adherence to a neutral approach to constitutional interpretation, and I admit that this is an attractive goal.  It would be wonderful if the only issue to be debated in the confirmation of Supreme Court justices was their ability and their integrity and not their political orientation.  Bork's approach would also have the advantage of eliminating disagreements about the meaning of the Constitution.  If we were to adopt Judge Bork's approach to constitutional interpretation we would all come to the same conclusion about issues such as women's rights and school integration.  When the 14th Amendment was adopted women did not have equal rights nor was society about to confer those rights upon them.  Women were barred by law from most professions and married women in particular were legally subject to their husband's control in any number of respects.  Bork's method of constitutional analysis yields an easy answer to the question of women's rights – they don't have any under the Equal Protection Clause.  Nor would blacks have any ground for objecting to the constitutionality of state-sponsored segregation.

     Dave notes that there is a "right to cure" contained within the Constitution – the Amendment process – and I suppose that means that the advocates for women's rights or racial integration should have lobbied for and obtained the passage of constitutional amendments securing equal rights for women and an end to official segregation.  My objection to this line of argument is that the Constitution has already been amended to address those specific subjects and many more.  The 14th Amendment provides that "No State shall deny to any person within its jurisdiction the equal protection of the laws."  Like the words "liberty" and "due process" the notion of "equality" is ambiguous – it means different things to different people.  But the core idea is very simple.  People who are essentially the same (in the context of a particular situation) must be treated the same; people may be treated differently only if they are in fact different.  I think that it is clear – really beyond dispute – that the framers of the 14th Amendment, having fought and won a great civil war, were determined to insert the principle "all men are created equal" into the Constitution.  They had sacrificed mightily for the principle of equality and to solidify their victory they made this concept part of our fundamental law.  They disagreed among themselves about who was equal and who was not, and they knew that we always will have disagreements about that.  But they meant for us to use our best resources and all that we have learned about human nature and human potential to ensure that people are treated equally.  In general mid-nineteenth century society thought that blacks and whites could not mingle on peaceful terms and that women were intellectually and emotionally unfit to take care of themselves or to serve in professions like the law.  Society was wrong on both counts, and when it became clear that those beliefs were erroneous it became the duty of the Supreme Court to strike down the discriminatory laws which were based upon those beliefs.  When the Witt case or one like it comes before the Supreme Court the Court will have to decide whether gays and lesbians can effectively serve in the military or whether their presence in the armed forces is a detriment to national security.  If the government has a sound reason to bar them from the military then "don't ask – don't tell" will be upheld.  Similarly, in the Caperton case there were strong arguments for disqualifying Judge Benjamin (the appearance of impropriety was obvious and undeniable) as well as strong arguments against disqualifying him (judicial economy).  Judges can and should balance all of those considerations.  But I cannot support the confirmation of a judge who would read the words "liberty," "equal protection," and "due process" out of the Constitution simply because he is unwilling to acknowledge that these are difficult legal questions that must be examined from all sides.

Tagged as: constitutional interpretation, constitutional law, original intent, Robert Bork