Judge Robert H.Bork, one of the champions of conservative values and the Constitution died yesterday. As a tribute to him Meridian is re-running this 2005 interview, which he gave us just after the Massachusetts Supreme Judicial Court had ruled that the state had to grant gay couples the right to marry. This was just one year after the gay marriage initiative had been defeated by that state’s legislature. Once again the courts had snatched the voice of the people, overriding it for their own version of social progress.
Judge Robert H. Bork, a pivotal figure in the culture war, says our nation is being radically altered by activist judges who are using their courts as a tool for elites who want to impose their favored values on society.
Judge Bork, in books like Slouching Toward Gomorrah and Coercing Virtue paints a worried picture of an eroding American society. Formerly a circuit judge for the U.S. Court of Appeals for the District of Columbia Circuit, in 1987 he was nominated by President Reagan to the U.S. Supreme Court. After a concerted smear campaign by special interest groups, his nomination was not confirmed and a new word entered our language. To “bork” someone is to launch a relentless and systematically vicious attack on a candidate or nominee, especially through the media. Social conservatives regard Robert Bork as an eloquent spokesman in a decaying world.
Q. In your recent book you describe a judiciary that has taken on enormous power and systematically overturns the voice of the people. Judges have become the agents of cultural change-what many of us would call cultural decay. Are there no checks and balances upon them? Did the Founding Fathers create a flaw in the system that would allow a runaway judiciary to become unelected legislators?
A. There is a flaw. The Founders had no idea of what a court could become. The courts they knew were modest in their ambitions and in what they ruled on. They did not foresee a court that assumed the power to make law. For that reason they didn’t provide any significant checks and balances with respect to the judiciary. Nobody has the means of checking the judiciary.
Overlay this activist court with a culture that is increasingly permissive and doesn’t like to make moral judgments, and you get a picture of where we are going as a society. The court becomes a crucial part of the development of a culture of radical individualism where nobody has the right to criticize anything based on morality.
Q. What does judicial activism mean?
A. The term is bandied about so indiscriminately that it requires definition. Judges engage in activism when their decisions cannot plausibly be related to the constitution they claim to enforce. Such imperialism is now characteristic of most Western nations. That suggests the problem is not due simply to some unfortunate appointments to the Supreme Court. It is inherent in men and women given power without democratic accountability.
These elites press upon the rest of us on the lower slopes of Olympia their attitudes and musings about the nature of society.
Q. What can people do about this? Are we just to sit back and watch while the courts restructure our world?
A. People do resist some of the things that are taking place. They pass laws, for instance, against pornography, and the court wipes those out. One thing that could be done is to get judges that understand the judicial role, which is much more modest than their current behavior would suggest. Getting those judges is very difficult. You would have to win elections and control the Presidency and the Senate.
The parties are splitting along the cultural divide and the Democratic party in the Senate wants judges that will enact the liberal agenda regardless of what’s in the Constitution. The Republicans have not been as aggressive in defending the President’s nominees as I would like. I don’t know if we have the strength of will to win those battles over the judiciary. Beyond that, you can’t be sure what will happen to people once they become judges. Their opinions change. President Reagan might have been very surprised by the opinions of Sandra Day O-Connor.
Q. We received a letter from a reader who said she had worked hard to pass Proposition 22 [this was an early initiative defining marriage as the union of a man and a woman] in California defining marriage as between a man and a woman and wondered, if a court could undo all her effort, was it worth it? When judges snatch the voice from the people by negating their laws, does this sap the will of the people? Does it teach them that they are powerless to govern themselves?
A. One of the horrible things about the abortion decision is that it came from the judiciary. In all other western nations, it is a legislative decision. Our court has taken it away from the people-including the horror called partial-birth abortion.
The court is on the verge, unless popular outrage leads it to a more temperate position, of legalizing same-sex marriage. I don’t see how people who hold the rationale displayed in the Lawrence v. Texas decision, striking sodomy laws, could stop short of homosexual marriage. The only hope I see there is this proposed federal marriage amendment. That will be resisted furiously by Democrats, not necessarily the rank-and-file Democrats, but the Congressional Democrats, but some of them will support it. It takes a 2/3 majority of Congress and 3/4 of the states to ratify it.
Q. What can people do as they watch their world make this drastic social shift?
A.In this individual case, you can do something by working to pass a marriage amendment. But you cannot amend the Constitution every time there is another outrage.
Still, the public must be alerted that their culture is being systematically subverted by a permissive, individualistic, non-judgmental world-view driven in the courts. Now you can show oral sex on cable television, you can show computer-simulated child pornography. It is not just an isolated bad decision coming from the courts to drive this viewpoint, but a systematic progression. Any attempt to get people to vote for a candidate based on what kind of judges they would vote on has been futile to this point.
Q. Why has this liberal philosophy flourished while conservatives seem asleep at the wheel?
Liberals are more aggressive, but in addition to that, conservatives do not control the primary means of education. Liberals control the universities. They award professorships. They control the news media, who are uniformly left. People denounce Fox News as terribly opinionated. It is hated not because it is conservative, but because it is not liberal, and that is enough to get it denounced.
Liberals control media, radio, television, many church bureaucracies , many clergymen, museum staffs, foundation staffs, and Hollywood. These outlets of education are all far to the left and, of course, they have the rewards to give to young people Who wants to be a professor in Christiandom if you could be a professor at an Ivy League school?
Is there a way to reverse this so that social conservatives have more influence?.
A. I have no idea. If I knew, I would be out there explaining how to do it. Irving Kristol said, “There is no culture war. There used to be, but the other side won.” Kafka said, “There is hope, but not for us.” T.S. Eliot said, “For us there is only the trying. The rest is not our business.” Of course it is our business, that’s why we try. You do battle wherever you can do battle, and there’s no point in giving up.
Q. Where does the cultural war find its worse expression?
A. Antipathy toward religion. The biggest divide between so-called intellectuals and everybody else is on religion. They are indifferent to or very hostile toward religions. It is perfectly clear and has been spelled out in Philip Hamburger’s book Separation of Church and State. There is no possible ground for this wall of separation, but the court moves ahead obliterating religion from the public square. Religion accounts for civility and self-restraint in our society, which is vanishing as religion has been marginalized and pushed to the sidelines of the debate. The Supreme Court has played a large role in doing this.
Q. If the courts are taking a legislative role and trampling something as important to most people as religion, why, as the polls show, do they generally hold the Supreme Court in such high esteem?
A. They think the Court decides according to principle while legislators operate out of expedience. They don’t understand the courts or the nature of what is happening..
Q. Is it possible to help people understand that as the courts go, the culture goes? That they need to pay attention to what kind of judges their candidates support?
A. To this point people just haven’t turned out in elections over the issue of judges. I don’t know if the people are ever going to be educated enough to realize that they are being ruled by liberal judges. They say that they are speaking in the name of the Constitution and it is a revered document, so people believe it must be so. Even conservatives, if they like something, think it must be in the Constitution. I got in a bitter debate with some conservatives who felt that a ban on abortion must be in the Constitution. Whatever you feel about abortion, it is not in the Constitution. It has nothing to say on the subject. Conservatives often share the sins of the liberals; it is just that they are losing.
Q. Why do the Supreme Court justices feel free to interpret the Constitution in ways that the Founding Fathers could never have intended?
A. Legal scholars and the justices say that our understanding as a society has evolved. They also play games where they look at the Constitution and see new rights that no one else before them has ever seen. Justice William Brennan looked at the Bill of Rights and said it was about human dignity, and there went the death penalty which he didn’t find dignified. The Justices have come to view themselves as philosopher kings or Olympians, discharging a new vision for the country.
Q. You say that too many activist judges are seeking to thrust the views of the intellectual elite on the rest of us. Who are these people?
A. The world-view has a shape. It is utopian. They have a version of virtue they want to cast upon us. This class, the intellectual elite, are not distinguished by any particular intellectual ability. Hollywood’s Barbra Streisand nor news media’s Peter Jennings are particularly known for their intellectual accomplishment, but they believe they have the vision for how things should be and they are going to shove it down the throat of the rest of us.
One time I was debating at the University of Michigan and said the Supreme Court had gone too far in removing certain decisions from local communities. A man from the ACLU got up and called me a fascist. So it had come to this. Letting the people vote is fascism, but having a judge make their laws for them is democracy?
Q. So they consider the rest of us a bunch of hapless rubes waiting to be enlightened and reshaped by them? What can we do?
A. I don’t know if it can be turned around, but I intend to cause as much pain as I can on the way out.
Q. You are also troubled because more and more often the Supreme Court is quoting international law as a precedent in making their decisions instead of just sticking to what our Constitution says.
A. Justice Breyer recently quoted from the Supreme Court of Zimbabwe. The justices are now so involved with talking to foreign judges that they are coming to see themselves as involved in a global constitutional conversation. Ginsburg recently quoted a resolution in Europe. None of the justices is sticking to the documents that they have. What an African decision has to do with the meaning of our Constitution, I don’t know. Since they have departed from our Constitution and are making stuff up, they have joined in the culture war. They are enacting the left liberal agenda instead of sticking to their own documents.
I haven’t got a solution. One can’t foretell the future, but something has to change.
People who insist on sticking to the Constituion are labeled as right-wing idealogues.
I was trying to decide on the title for my next book and I’m going to reject the one I had in mind: The New Dark Age.
People don’t understand.If a candidate for office puts the liberal agenda on his platform he loses. So those who want to reshape America have gone to the court. If the court states a ruling, the people roll over. America is not as feisty as we think we are. We’re passive.