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Books and Culture

Jack Wade Nowlin
Smorgas-Bork
A delectable sampler of the great jurist’s writings and arguments
1 May 2009

A Time to Speak: Selected Writings and Arguments, by Robert H. Bork (ISI Books, 750 pp., $30)

Robert H. Bork has done the reading public the great favor of putting together a collection of his selected writings and arguments. The result is a delight. The volume reflects the varied phases of Bork’s illustrious career in law and public life—as lawyer, law professor, solicitor general, federal judge, nominee to the Supreme Court, public intellectual, and now a distinguished fellow of the Hudson Institute—and even offers Bork the mixologist, in which capacity he provides his recipe for a dry martini. Through it all runs the potent combination of his powerful intellect, unfailing good sense, fortitude, and fierce commitment to American legal tradition.

Bork’s career as a government lawyer is represented by briefs that he cowrote and submitted as solicitor general. These briefs reveal his early commitment to judicial restraint and originalism—the view that judges should adhere to the Framers’ understanding of the Constitution rather than using the document as a pretense for usurping legislative authority. In a brief submitted to the Supreme Court in the 1970s, Bork ably and successfully defended the constitutionality of the death penalty before an activist Court poised to strike down capital punishment in all circumstances. Bork’s legal argument remains firmly grounded in an originalist understanding of the constitutional text, which grants the American people the right to resolve policy questions associated with capital punishment in their elected legislatures. The brief reveals a lawyer respectfully but resolutely calling for the nation’s highest court to choose law over politicized lawlessness.

We see a different aspect of Bork in the opinions he wrote as a federal judge serving on the United States Court of Appeals. Here, he proves a dedicated lower-court judge, faithfully committed to parsing and applying legal precedents established in Supreme Court case law. In Lebron v. Washington Metro Area Transit Authority (1984), Bork upheld the First Amendment right of Michael A. Lebron to display posters highly critical of President Reagan in a subway station. The transit authority had permitted posters in the subway, but only if they had received prior approval from the government—in essence, creating a “public forum” for free speech but imposing a “prior restraint” on it. Bork’s analysis demonstrates his respect for precedent. As a lower-court judge, he did not ask whether the First Amendment, unmediated by the precedents of the Supreme Court, protected Lebron’s rights. Rather, Bork realized that the Court’s controlling precedents—in particular, its public-forum and prior-restraint doctrines—dictated an outcome. Bork’s work demonstrates that lower-court judges with strong opinions of their own can understand and faithfully apply Supreme Court precedents, whether they ultimately agree with them or not.

Most of the book’s pieces representing Bork’s work as an academic and public intellectual involve constitutional interpretation and the proper role of the judiciary. Here again, Bork offers a vigorous intellectual defense of originalism. He argues that the principal alternative to originalism, the “living Constitution” theory, simply confers on a handful of unelected judges the power to rewrite the Constitution according to contemporary political values. Not surprisingly, Bork is an incisive critic of judges who replace constitutional principles with their own diktats, thereby converting the rule of law into the rule of lawyers. He also offers a trenchant dissection of progressive elites, who in recent decades have exploited their dominance over the judicial process to impose controversial policy preferences on the public.

Bork’s opposition to politicized judging extends to his fellow conservatives, some of whom are likewise too quick to interpret the Constitution to reflect their preferred policy positions. For instance, in an illuminating exchange with Nathan Schlueter, a professor at Hillsdale College, Bork rejects a form of socially conservative judicial activism. The Fourteenth Amendment famously guarantees to all “persons” the “equal protection of the laws,” and some scholars have argued that this necessarily includes a constitutional right to life for unborn children. But Bork recognizes that the constitutional issue for federal judges remains the original understanding of the Fourteenth Amendment (ratified in 1868) on the question of abortion. On that historical question, Bork sees little evidence, if any, that the amendment had anything to do with abortion. He therefore condemns not only the pro-choice judicial activism of the Supreme Court in cases such as Roe v. Wade, but the advocacy of pro-life judicial activism as well.

Bork’s essays cover a broad range of legal and moral questions. To take a few: What should we make of the Supreme Court’s increasing reliance on international and foreign sources of law in interpreting the Constitution? This dangerous trend, Bork argues, reflects the desire of elites in the United States to remake American law in the image of the progressive legal regimes of the European Union. What of Bush v. Gore? Bork argues that the Supreme Court’s ruling was justified on the grounds that Article II of the Constitution expressly grants to state legislatures the authority to establish procedures for appointing members to the Electoral College—authority usurped by the Florida Supreme Court when it effectively rewrote the state’s election laws to favor Gore’s candidacy. What about the proposal to amend the Constitution to define marriage as the union between one man and one woman? Such a measure is necessary, Bork believes, to prevent activist state and federal judges from simply declaring homosexual marriage a constitutional right, in defiance of the law and the democratic process.

And finally: What is the recipe for the perfect martini? A first-rate gin, such as Bombay Sapphire; an imported vermouth, such as Boissiere; and a high proportion of gin to vermouth (perhaps eight to one), served in a stemmed glass chilled very cold, with a twist of lemon, no olives, and no ice cubes. One could add to this formula one more ingredient: good conversation with a wise man, such as Judge Bork.

Jack Wade Nowlin, an associate professor of law at the University of Mississippi School of Law, is currently a visiting fellow with the James Madison Program in American Ideals and Institutions at Princeton University.

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