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Authors: Robert H. Bork
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argument usually proceeds from the observation that society’s morality is evolving and that the Constitution should be interpreted by the courts to reflect that fact. The argument is disingenuous. When a court invalidates a statute, it invalidates the best evidence available of what the society’s morality entails. The evolving morality rationale, which the Supreme Court has used a number of times, is actually no more than a statement that the Court believes the morality it prefers should be enforced. The society is not evolving, only the Court is.
Nobody advances such spurious arguments to justify the Supreme Court in changing the meaning of a statute. These arguments are advanced only with respect to the Constitution, because a constitutional ruling cannot be overturned by the legislature. That fact reveals the antidemocratic animus, the socialist impulse, that lies behind each of these arguments for a Court that is not bound by the original understanding of the Constitution’s principles.
Possible Remedies for Judicial Activism
It is not apparent what, if anything, can be done to bring the American judiciary back to legitimacy in a polity whose basic character and assumptions are democratic. There appear to be four possible routes, none of them encouraging at present, though they differ in the degree to which they offer long-run hope.
There are, first, two structural solutions that have drawn support from time to time. One is the proposal to resort to Article III, section 2, which provides that “the Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” (There is no doubt that Congress may limit the jurisdiction of the lower federal courts.) The power to make exceptions to the Court’s jurisdiction, however, is not a means to reassert democratic control, and it can hardly have been designed for that purpose. If the Supreme Court’s jurisdiction were removed from a category of cases, jurisdiction would remain in the various state courts under Article VI’sprovision that the judges in every state shall be bound by the Constitution. Neither Congress nor the state legislatures, therefore, have the authority to remove constitutional cases from state courts. Removing all federal jurisdiction over, say, abortion cases would accomplish little or nothing. To do so would create the possibility of fifty different constitutional laws on the topic, and experience shows that many state courts are even more activist than their federal counterparts.
A second structural solution would require a constitutional amendment to permit the overruling of Supreme Court decisions by the full Congress or by the Senate. Suggestions of this sort have been made from time to time, but are never taken very seriously. Canada’s
Charter of Rights and Freedoms
has a similar provision, as will be seen, but so far it has not proved effective in curbing its Supreme Court. Perversely, it may even encourage activism by allowing Canadian judges to claim increased freedom to innovate precisely on the grounds that they are subject to democratic revision if they are seen to go too far. Canadian legislatures only rarely use their power to override.
There remain two other possible cures for judicial encroachment on democratic prerogatives. One lies in the appointment of judges who will apply the Constitution according to the original understanding of its principles. So far this strategy has not been successful. Once on the Court, appointees often display unsuspected liberal activist tendencies or they gradually move in that direction because of the influence of the media and the academic world on judicial reputations. Moreover, federalcourt, and particularly Supreme Court, confirmations have become a major battleground in the culture war. The Democratic Party is now the ally of the New Class, so that, in a closely divided or a Democratic Senate, nominees suspected of adhering to
Nobody advances such spurious arguments to justify the Supreme Court in changing the meaning of a statute. These arguments are advanced only with respect to the Constitution, because a constitutional ruling cannot be overturned by the legislature. That fact reveals the antidemocratic animus, the socialist impulse, that lies behind each of these arguments for a Court that is not bound by the original understanding of the Constitution’s principles.
Possible Remedies for Judicial Activism
It is not apparent what, if anything, can be done to bring the American judiciary back to legitimacy in a polity whose basic character and assumptions are democratic. There appear to be four possible routes, none of them encouraging at present, though they differ in the degree to which they offer long-run hope.
There are, first, two structural solutions that have drawn support from time to time. One is the proposal to resort to Article III, section 2, which provides that “the Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” (There is no doubt that Congress may limit the jurisdiction of the lower federal courts.) The power to make exceptions to the Court’s jurisdiction, however, is not a means to reassert democratic control, and it can hardly have been designed for that purpose. If the Supreme Court’s jurisdiction were removed from a category of cases, jurisdiction would remain in the various state courts under Article VI’sprovision that the judges in every state shall be bound by the Constitution. Neither Congress nor the state legislatures, therefore, have the authority to remove constitutional cases from state courts. Removing all federal jurisdiction over, say, abortion cases would accomplish little or nothing. To do so would create the possibility of fifty different constitutional laws on the topic, and experience shows that many state courts are even more activist than their federal counterparts.
A second structural solution would require a constitutional amendment to permit the overruling of Supreme Court decisions by the full Congress or by the Senate. Suggestions of this sort have been made from time to time, but are never taken very seriously. Canada’s
Charter of Rights and Freedoms
has a similar provision, as will be seen, but so far it has not proved effective in curbing its Supreme Court. Perversely, it may even encourage activism by allowing Canadian judges to claim increased freedom to innovate precisely on the grounds that they are subject to democratic revision if they are seen to go too far. Canadian legislatures only rarely use their power to override.
There remain two other possible cures for judicial encroachment on democratic prerogatives. One lies in the appointment of judges who will apply the Constitution according to the original understanding of its principles. So far this strategy has not been successful. Once on the Court, appointees often display unsuspected liberal activist tendencies or they gradually move in that direction because of the influence of the media and the academic world on judicial reputations. Moreover, federalcourt, and particularly Supreme Court, confirmations have become a major battleground in the culture war. The Democratic Party is now the ally of the New Class, so that, in a closely divided or a Democratic Senate, nominees suspected of adhering to
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