At one point during his failed confirmation hearings, Judge Bork famously told the senators that he looked forward to the “intellectual feast” of being on the Supreme Court. Well, he didn’t get that chance, but he certainly left behind something of an intellectual feast. Just in September, I had to reread most of his treatise on the law of monopolies and restraints on trade, The Antitrust Paradox (1978). That book virtually transformed the field, helping to achieve a free-market consensus on the proper role of antitrust law across the political spectrum. Reflected in court rulings and the enforcement priorities of the Justice Department and Federal Trade Commission, that consensus has permitted a great of deal of economic activity that would not have occurred without Bork’s influence. Bork’s legacy is thus more than an intellectual feast — it includes putting a lot more actual food on the tables of American families.
Perhaps his most classic law-review article appeared in the Indiana Law Journal in 1971: “Neutral Principles and Some First Amendment Problems.” In it, he explains how the Supreme Court’s modern tendency to ignore neutral constitutional principles in favor of contemporary preferences undercuts the whole rationale for judicial review in a democratic society. It remains one of the most powerful arguments against the primacy of transient majorities over constitutional restraints.
Bork insists that judges must focus on the impartial and consistent application of “neutral principles” (i.e., principles that apply to all cases the same way). As you read the following passage, consider what a brilliant light it sheds on the Supreme Court’s Obamacare decision (more than 40 years later), and the whole debate surrounding it:
The requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic. The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. This model we may for convenience, though perhaps not with total accuracy, call “Madisonian.”
A Madisonian system is not completely democratic, if by “democratic” we mean completely majoritarian. It assumes that in wide areas of life majorities are entitled to rule for no better reason that they are majorities. We need not pause here to examine the philosophical under-pinnings of that assumption since it is a “given” in our society; nor need we worry that “majority” is a term of art meaning often no more than the shifting combinations of minorities that add up to temporary majorities in the legislature. That majorities are so constituted is inevitable. In any case, one essential premise of the Madisonian model is majoritarianism. The model has also a counter-majoritarian premise, however, for it assumes there are some areas of life a majority should not control. There are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.
Some see the model as containing an inherent, perhaps an insoluble, dilemma. Majority tyranny occurs if legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the majority nor the minority can be trusted tb define the freedom of the other. This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court’s power to define both majority and minority freedom through the interpretation of the Constitution.
Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution. But this resolution of the dilemma imposes severe requirements upon the Court. For it follows that the Court’s power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority.
Following its own predilections while pretending to apply neutral theory is of course what the Supreme Court has been busy doing since the New Deal, when it abdicated its role as guardian of the Constitution’s restraints on government power. Particularly since the drunken rampage of judicial legislation unleashed by Chief Justice Earl Warren, the Court has done little else in its role of judicial review besides replacing long-standing principles of constitutionalism with whatever personal preferences may then be fashionable among the justices. This has invariably facilitated the tyranny of transient majorities, as we just saw with the Obamacare decision. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito have emerged as stalwarts of principle, but that was not always true even for them — and for the other justices, and other courts, the rampage of judicial legislation continues largely unabated, impelled by an unholy marriage of stare decisis and terrible precedents.
The legacy of Judge Robert Bork is not merely one to be cherished and grateful for. It is one we have an obligation to assimilate and build upon. The descent from constitutional principle into the moral bankruptcy of a post-constitutional majority is the struggle of our generation, too, and the future of our republic hangs in the balance. The “intellectual feast” Judge Bork left to us is also a call to arms.
The one and only.