The Adversarial Courts

In November 1996, we published a symposium, “The End of Democracy?”, on what we called “the judicial usurpation of politics,” and it stirred up quite a storm. The essay by the distinguished jurist and constitutional scholar Robert H. Bork on “lawless law” was an important part of that symposium, and he returns to that subject in a comprehensive and devastating article in the New Criterion, titled “Adversary Jurisprudence.” He employs as an epigraph an assertion by Oliver Wendell Holmes: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.” That is juxtaposed with a statement by the contemporary professor of law, Lino Graglia: “The nightmare of the American intellectual is that the control of public policy should fall into the hands of the American people. . . . Policymaking by the justices of the Supreme Court, intellectuals all, in the name of the Constitution, is the only way in which this can be prevented.”

Bork surveys a long and depressing series of decisions-on free speech, pornography, contraception, abortion, sexual equality, etc.-in which the Supreme Court, claiming the authority of the Constitution, has taken public policy out of the hands of the people and their elected representatives. Driving such judicial usurpation of politics is not only intellectual hubris but also a curious notion of individual rights. Bork cites instances relative to the alleged “establishment” of religion. “The same radical individualism determined the result in Santa Fe Independent, School District v. Doe (2000). The school district authorized two student elections, one to decide whether invocations, messages, or statements should be delivered at home football games and a second to select a student to deliver them. The Court held the school district’s policy a forbidden establishment of religion. Dislike of majority rule surfaced injustice Stevens’ opinion for the majority: ‘[T] his student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community.” Religious speech must have extraordinary political power. All of us have heard actual political speech with which we heartily disagreed without feeling any the less members of the political community. But where religion is concerned, even imaginary discomfort to a hypothetical individual overrides the reasonable desires of the community.”

But the current Supreme Court, Bork writes, is relatively “balanced” in comparison with what is being taught in law schools today. The legal theories that dominate the schools take it for granted that the challenge of lawyers is to get the courts to remake society along the lines they favor. Quaint notions about what the Founders intended or what the Constitution actually says will have to go the way of antiquated ideas about representative democracy. “Perhaps there is no remedy for judicial activism, perhaps a preference for immediate victories and short-term gratification of desires is characteristic of the spirit of our times. The public does seem ready to jettison long-term safeguards and the benefits of process for the short-term satisfaction of desires. That is always and everywhere the human temptation. But it is precisely that temptation that a constitution and its judicial spokesmen are supposed to protect us against. Constitutions speak for permanent values and judges are supposed to give those values voice. Instead, representatives of our judiciary are all too often, and increasingly, exemplars of disrespect for the rule of law. That situation is inconsistent with the survival of the culture that has for so long sustained American freedom and well-being. The example of lawless courts teaches a lesson of disrespect for process to all other actors in that system, the lesson that winning outside the rules is legitimate, and that political victory is the only virtue.”

But what about the people and their elected representatives? Any impulse to rebellion is effectively sedated. “A Court that in one context after another lays down general principles of emancipation commends that principle to public attention and imitation and thus affects legislative opinion. Many people assume that what is legal is also moral, and they are all too likely to believe that what has been declared unconstitutional is immoral. Resistance to judicial imperialism in the name of the Constitution itself comes to be seen as immoral.”

Bork’s conclusion is nothing if not straightforward: “Unless it takes its law from the original understanding of the Constitution’s principles, the Court will continue to be an adversary to democratic government and to the morality of our traditional culture.”

The Supreme Court and the other courts following its lead have become the adversary of democratic government and of the morality affirmed by the great majority of Americans. This is a profound violation of what the Founders understood as just government derived from the consent of the governed. In 1996 we were widely criticized for describing this state of affairs as an illegitimate regime. A regime is a mode of rule or management; in this instance a mode of misrule and mismanagement. It is contrary to our constitutional order and is therefore illegitimate. But is it the case that, after so long a time of misrule, the governed have in fact given their consent to the abrogation of the principle that just government is derived from the consent from the governed? We must fervently hope that is not the case. It is no criticism to observe that Robert Bork’s “Adversary Jurisprudence” does not say much that is new. But it must be said again and again. The stakes are very high. There may not be a hope of remedy in sight, but we dare not let ourselves get used to this illegitimate regime.