In 1982, Ronald Reagan appointed Robert Bork to the D.C. Circuit Court of Appeals. Five years later, Reagan nominated Bork for the Supreme Court. The Senate, voting mostly along party lines, rejected that nomination. (The 54 Democratic Senators voted 52 to 2 to reject confirmation; the 46 Republican Senators voted 40 to 6 to confirm the appointment.) Anthony Kennedy ended up getting confirmed for that seat on the Supreme Court instead.
Bitter and angry about not getting confirmed for the Supreme Court, Bork resigned from the Court of Appeals the next year, and set out to write a book about these three things:
One) The history of the ways that the Supreme Court has been interpreting, and sometimes misinterpreting, the U.S. Constitution.
Two) The essence of Bork’s judicial philosophy: Originalism. What does it mean; what are some arguments - advanced by some scholars - against that judicial philosophy; what are some other alternative judicial philosophies, other than originalism, that are advocated by many liberal Con Law scholars and by some conservative Con Law scholars; why originalism is the only valid judicial philosophy to have.
Three) How and why did American liberals go on a rampage to defeat his confirmation to the Supreme Court. Since that campaign was successful, what does it mean for the future?
The purpose of this post (I was thinking about creating a new thread) is to discuss certain things Bork said in Chapter 7 of “The Tempting of America,” and whether those things he said influenced Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter as they grappled with the abortion issue.
Chapter 7 is entitled “The Original Understanding.” It begins with these two paragraphs:
What was once the dominant view of constitutional law – that a judge is to apply the Constitution according to the principles intended by those who ratified the document – is now very much out of favor among the theorists in the field. In the legal academies in particular, the philosophy of original understanding is usually viewed as thoroughly passe, probably reactionary, and certainly – the most dreaded indictment of all – “outside the mainstream.” That fact says more about the lamentable state of the intellectual life of the law, however, than it does about the merits of the theory.
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. (Page 143.)
The first sub-chapter heading is “The Constitution as Law: Neutral Principles.” Next comes, “Neutrality in the Derivation of Principle,” followed by, “Neutrality in the Definition of Principle,” then, “Neutrality in the Application of Principle,” and, “The Original Understanding of Original Understanding.” Then the last sub-chapter heading is called, “The Claims of Precedent and Original Understanding.” This is what I am going to focus on in this post.
”The question of precedent is particularly important because, as Professor Henry Monaghan of Columbia University law school notes, ‘much of the existing constitutional order is at variance with what we know of the original understanding.’ Some commentators have argued from this obvious truth that the approach of original understanding is impossible or fatally compromised.” But Bork says that those commentators who say so are making a mistake, because they “confuse the descriptive with the normative. To say that prior courts have allowed, or initiated, deformations of the Constitution is not enough to create a warrant for present and future courts to do the same thing.”
All serious constitutional theory centers upon the duties of judges, and that comes down to the question: What should the judge decide in the case now before him? Obviously, an originalist judge should not deform the Constitution further. Just as obviously, he should not attempt to undo all mistakes made in the past. … At the center of the philosophy of original understanding, therefore, must stand some idea of when the judge is bound by prior decisions and when he is not.
Many people have the notion that following precedent (sometimes called the doctrine of stare decisis) is an ironclad rule. It is not, and never has been. …
The practice of overruling precedent is particularly common in constitutional law, the rationale being that it is extremely difficult for an incorrect constitutional ruling to be corrected through the amendment process. Almost all Justices have agreed with Felix Frankfurter’s observation that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” (Graves v. New York, (1939), Frankfurter, J., concurring.) … [W]hat “the Constitution itself” says may … be irretrievable, not simply because of “what [the Justices] have said about it,” but because of what the nation has done or become on the strength of what the Court said.
The law currently has no very firm theory of when precedent should be followed and when it may be ignored or overruled. It is an important subject nonetheless, and it is particularly so to a judge who abides by the original understanding, because, as Monaghan said, so much of our constitutional order today does not conform to the original design of the Constitution. If we do not possess anything worthy of being called a theory of precedent, it is possible at least to suggest some of the factors that should be considered when facing a question of following or overruling a prior decision.
No question arises, of course, unless the judge concludes that the prior constitutional decision, which is urged as controlling his present decision, was wrong. In making that determination, particular respect is due to precedents set by courts within a few decades of a provision’s ratification since the judges of that time presumably had a superior knowledge of the original understanding of the Constitution. Similarly, precedents that reflect a good-faith attempt to discern the original understanding deserve far more respect than those that do not. Here, there are not only the claims of stability and continuity in the law, but respect for the knowledge and intelligence of those who have gone before. Today’s judge should reflect that if the prior court has been wrong, he too many fall into error.
But if the judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless have become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. Judging is not mechanical. Many rules are framed according to predictions of their likely effects, and it is entirely proper for a decision to overrule or not overrule to be affected by a prediction of the effects likely to flow from that. …
There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, “Go and sin no more.” (Bork, “Tempting,” pages 155-159.)
So what kinds of previous Supreme Court decisions are ones that Bork said should not be overturned now, even though they were clearly, obviously wrong? He gave one specific example and one very general and broad phenomenon. The specific example pertained to the issue of the federal government issuing paper currency. The Court ruled in 1870,
Hepburn v. Griswold, that it is unconstitutional for the federal government to make paper money legal tender for antecedent debts. But only one year later, in the
Legal Tender Cases, the Court overruled
Hepburn and allowed paper money. Bork says the 1870 decision was right and the 1871 one was wrong, but the
Hepburn decision now is “irretrievable,” and “if a judge today were to decide that paper money is unconstitutional, we would think he ought to be accompanied not by a law clerk but by a guardian.” (Page 155.)
The general and broad phenomenon that Bork says cannot be overturned now, even though it was wrong for the Supreme Court to have allowed it when it happened, was “the centralization [of federal power] accomplished by abandoning restrictions on congressional powers during the New Deal.” Bork discussed the general phenomenon of “The Court Stop[ped] Protecting Federalism” during the New Deal era in pages 51-57 and 214-216 of his book, and to Bork that was a mistake, but it’s a mistake that simply cannot be undone now. “It is too late to overrule not only the decision legalizing paper money but also those decisions validating certain New Deal and Great Society programs pursuant to the congressional powers over commerce, taxation, and spending. To overturn these would be to overturn most of modern government and plunge us into chaos. No judge would dream of doing it.” (Page 158.)
But, consistent with Bork’s recognition of “Go and sin no more,” he said that if Congress tries now to pass new legislation that deals with entirely new issues and such new laws are not consistent with the original understanding of federalism – the limits to the meaning of the Commerce Clause, for example – then the Court should strike down those laws now. “The past decisions are beyond reach, but there remains a constitutional principle of federalism that should be regarded as law more profound than the implications of the past decisions. They cannot be overruled, but they can be confined to the subject areas they concern.” If Congress passes new laws that go beyond a historically correct understanding of the Commerce Clause, “the Court could refuse to extend the commerce power so far without overruling its prior decisions, thus leaving existing legislation in place but not giving generative power to the faulty principle by which that legislation was originally upheld.” (Pages 158-159.)
Those are interesting concepts, but, IMO, very messy ones as well. But I am not here on this thread to discuss any of those implications in the last few paragraphs. I am interested in grappling with the concept that Bork said precedents should not be overturned if they are “so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions,” that those precedents should not be overruled now.
Bork himself said that
Roe v. Wade should be overruled, “it will never be too late to overrule [
Roe]”; that precedent does not conform to what he had said about precedents that are “too late” to overturn. “[
Roe] remain(s) unaccepted and unacceptable to large segments of the body politic, and judicial regulation could at once be replaced by restored legislative regulation of the subject.” Suppose, as I do, that O’Connor, Kennedy, and Souter read Bork’s book, in 1990 or up until the time they decided how to conclude the case of
Planned Parenthood v. Casey in 1992. Is it possible that they were more influenced by what Bork said about precedents that are “so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions,” than by what Bork said about the ability to overturn
Roe? When the three of them wrote the plurality opinion in
Casey, they emphasized that millions of American women rely on the constitutional right to obtain legal abortions - they rely on
Roe - and that was one of the most important reasons why they decided not to overturn that precedent. Were they impressed by the concept - as expressed by Bork - that
Roe is probably a precedent that is “embedded in the life of the nation,” “accepted by society,” “fundamental to the private and public expectations of individuals,” and that was why they declined to overturn it? If so, might it be the case that one of the current staunchly conservative Justices have read Bork's "Tempting" as well, and might they now think the same thing that O'Connor, Kennedy, and Souter were thinking in 1992?
