It is premature to pronounce the job completed, but with the nomination of Judge Samuel Alito of the Third Circuit Court of Appeals for a seat on the Supreme Court, George Bush has substantially narrowed the rift with his conservative base he created with his nomination of Harriet Miers. Ms. Miers, a woman of many fine qualities, was perceived as simply lacking the constitutional sophistication to withstand the pressures of a liberal Court majority and its allies in the academy and the media sufficiently to help bring the Court back from its self-assumed role as a political rather than a legal institution. Everything we know about Judge Alito, which, admittedly, is not all there is to know, indicates that he is the man to do just that.
He has certainly said the right things: “Judges should be judges. They shouldn’t be legislators, they shouldn’t be administrators.” That that should be refreshing, that it should even need saying, shows how far sunk in activism our courts, and particularly the Supreme Court, have become. Alito is a member of the Federalist Society, an indication that he is devoted to the rule of law rather than the rule of judges. The ultra-liberal Democratic leadership in the Senate will undoubtedly try to make an issue of that membership. The words “out of the mainstream” and “right-wing extremist,” spoken with somber intimations of doom, are already being practiced before their mirrors by Senators Kennedy, Schumer, and Durbin. The Democrats’ depiction of the Society has about as much factual basis as that other fraud, the Protocols of the Elders of Zion. The Federalist Society is in fact far less conservative than the ACLU is liberal, but no one made an issue of Ruth Bader Ginsburg’s work as counsel for that organization during her confirmation hearings.
We may be confident, I think, that a Justice Alito, like Chief Justice John Roberts, will not vote to create new and hitherto unsuspected constitutional rights. He will not share the extreme liberationist philosophy, one of the hangovers from the 1960s, that characterizes the current Court majority. But, also like Roberts, we do not know whether he will vote to overturn the worst constitutional travesties of the past. And, if he is the superb lawyer he is reputed to be, we will not learn that at his hearings either.
Yet overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis, and the reliance many women have placed on that decision. The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past. Cases like Roe, that some will claim must not be disturbed, were themselves repudiations of prior understandings of the Constitution.
If judgments about the prudence of overruling are invoked, the justices should take note of the fact that Roe lies at the center of the bitter polarization of much of American society. In countries where the issue is decided democratically, no such intense animus exists. Compromises are worked out and each side knows that it is free to continue the public debate in hope of doing better next time. That was, and would be again, the case in America if the subject of abortion were returned to state legislatures and electorates. Overruling Roe would not, as some Democrats will claim, make abortion illegal, but merely the subject of democratic regulation. We have paid a high price for a ruling that rests upon nothing in the Constitution and was arrived at in an opinion of just over 51 pages that contains not a line of legal reasoning.
Still, we do not know how the new chief justice and Justice-to-be Alito will rule on Roe and other liberal constitutional travesties of the past. Why, then, should conservatives support them? Because we can at least be sure that they will not start inventing yet new and previously unheard of constitutional rights. That would in itself be a vast improvement over the imperialistic Court majority’s drive to remake American culture and morality. That it will take at least one more justice of the Roberts-Scalia-Thomas-Alito stripe to return the Court to jurisprudential respectability is no reason not to support Judge Alito to the full. Let us rejoice in what we have gained.
–Robert H. Bork, a former judge on the U.S. Court of Appeals (D.C. Circuit), is a fellow at the Hudson Institute, a professor at Ave Maria School of Law, and a visiting professor at the University of Richmond Law School. He is also editor of A Country I Do Not Recognize: The Legal Assault on American Values, forthcoming from the Hoover Institution Press.