HARRY Jaffa has long engaged in a campaign of vilification against Robert Bork and William Rehnquist, a campaign I consider both sad and shabby. It is sad because he is attacking people who are on my and, he says, his side on the basic issue of constitutional law—the issue of the proper role of the Supreme Court in our system of government. One must expect attacks on Bork and Rehnquist from Ronald Dworkin, Bruce Ackerman, and Larry Tribe, and one can derive satisfaction from refuting them. But Jaffa is a hardcore political conservative; he was an advisor to Senator Barry Goldwater at a time when the name Goldwater was a liberal epithet. Indeed, he claims to be responsible for the famous slogan about extremism in defense of liberty being no vice, a stroke of genius that surely cost Goldwater whatever slim chance he ever had of winning the election. More important for present purposes, he is also, he tells us, a staunch foe of the judicial activism that has served to make the Supreme Court the enacting arm of the ACLU’s political agenda.
If Jaffa is opposed to judicial activism, why does he devote his time and energy to reviling its two most prominent and effective opponents in the past half-century—excepting possibly only Learned Hand and the newer arrivals, Justices Scalia and Thomas? How is the public interest served by that? And reviled them he has. His campaign against them has been shabby because he has attacked them not as a friendly critic or a disinterested scholar but personally, bitterly, and arrogantly. He has written that Bork “no doubt in his own mind . . . has taken on something of the status of a martyred saint of conservatism,” a statement for which he has not the slightest basis.
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