Judge Bork: Put the Constitution Ahead of Activist Judges
October 16, 2008| By David Talbot
Holding to an originalist interpretation of the Constitution is the only way to avoid arbitrary rule by judges, Judge Robert Bork said Wednesday at The Heritage Foundation.
In fact, he explained, today's judicial system serves to undermine our republican form of government.
One significant problem is what he called "Olympianism." Like the Olympic gods of ancient Greece, today's intellectual elites will descend from on high to issue their rulings, he explained. "They are willing to share their superior knowledge or they will impose it on us."
This view is vastly different from that of the Founders. Bork cited Alexander Hamilton, who wrote in the Federalist Papers that the judiciary will always be the least dangerous branch of government because it has neither the sword nor the purse, nor force or will. It has only judgment. In modern times, however, Supreme Court Justice Anthony Kennedy is on record saying, "a Justice has the opportunity to shape the destiny of a country."
The Supreme Court today is divided into two broad camps. The originalists—Justices Thomas, Scalia, Roberts and Alito—interpret the Constitution according to its original meaning and intent. Another bloc—Justices Stevens, Souter, Ginsberg and Breyer—hold an organic view of the Constitution. This latter view, Bork said, boils down to little more than a subjective moral philosophy. It holds that the Constitution's original sense has expired and is now obsolete.
Between these two voting blocks, Kennedy casts the deciding ninth vote. This means that he can rise above the Constitution and make laws according to his personal moral philosophy, which Bork said is a shocking and dismaying development.
Bork also said the Supreme Court is the only institution in our country that claims to have the final say in policy disputes. Certain court decisions—for example, those about entitlement programs like Social Security—cannot be easily reversed because the decisions are seen as final and are engrained too deeply into the American mind and system. Conservatives can try to improve certain liberal programs around the margins, but it may be more difficult to undo these liberal programs altogether.
Bork also said there is no legal rationale for Roe v. Wade, which struck down abortion restrictions. The Supreme Court's opinion in the case reflected Justice Blackmun's personal moral philosophy and would not withstand rigorous constitutional scrutiny.
The lecture was the first in the Joseph Story Lecture Series, a project of Heritage's Center for Legal and Judicial Studies. Story was a Supreme Court Justice from 1811 to 1842. The youngest-ever Justice, Story was appointed at age 32 and held closely to the Constitution's original intent.
