FLASHBACK--Q&A With Judge Robert Bork: Moral Life of Nation Could be Decided by One Judge

Terence P. Jeffrey | June 28, 2015 | 12:00pm EDT
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Judge Robert Bork with President Ronald Reagan (Wikimedia Commons)

[Editor's Note: In this interview with CNSNews.com in 2009, Judge Robert Bork warned that just "one judge"--Supreme Court Justice Anthony Kennedy--effectively had the power to decide "the moral life of the nation.” Bork made the assertion after warning: "But we are going to see in the near future a terrible conflict between claimed rights of homosexuals and religious freedom. You are going to get Catholic hospitals that are going to be required as a matter of law to perform abortions.  You are going to get Catholic or other groups’ relief services that are going to be required to allow adoption of a child by homosexual couples.  We are going to have a real conflict that goes right to the heart of the society.”] 

(CNSNews.com) - “Now, it’s a funny situation in which the moral life of a nation is in effect decided by one judge, because you have four solid liberal votes, four solid originalist votes, and one vote you can’t predict too accurately in advance,” said Judge Robert Bork, reflecting on the balance of the U.S. Supreme Court, in an interview with CNSNews.com.

Bork was pondering what the outcome might be if the court at some future point were to answer the question of whether the government has the constitutional authority to force Catholic hospitals to perform abortions.

It is Justice Anthony Kennedy whom Bork believes holds the court’s deciding vote on such issues.

The judge spoke with CNSNews.com Editor in Chief Terry Jeffrey in a videotaped interview Jan. 8, 2009. Here is a transcript of the conversation.

Jeffrey: Welcome to “Online with Terry Jeffrey.” Our guest on this program is Judge Robert Bork. Judge Bork was born in Pittsburgh, Pennsylvania.  He received both his bachelor’s degree and law degree from the University of Chicago. He was a law professor at the Yale University Law School. He served as solicitor general of the United States, and as acting attorney general of the United States.  He was nominated to the Supreme Court by President Ronald Reagan.

He has written several books, including “The Tempting of America” and “Slouching Towards Gomorrah.” His latest book is “A Time to Speak.” It is published by the Intercollegiate Studies Institute, where I also happen to be a visiting fellow.

Judge Bork, thanks for agreeing to this interview and inviting us into your home.

Bork: Well, I am glad and I intend to enjoy it.

Jeffrey: Me too, sir. One of the essays published in the book is “Olympians on the March: The Court and the Culture Wars,” which you published back in 2004. I want to read you a passage that you wrote.

Bork: Oh my.

Jeffrey: I am going to hold you accountable. You said: “Only a draconian response to unconstitutional court decisions remains. The Massachusetts Supreme Judicial Court has ordered the state’s legislature to amend its statutory law to permit homosexual marriage.  It is, or should seem, extraordinary that a court should order a legislature to amend and enact laws. The underlying decision is so self-evidently an act of judicial usurpation of the legislative function, and so wrong as a matter of constitutional interpretation that it might seem that any self-respecting legislature would simply refuse to comply, and if it did comply, that the governor would veto the bill. So accustomed have we become to judicial supremacy, however, that such a course sounds revolutionary. Yet there must be some means of standing up to a court that itself is behaving unconstitutionally in very serious matters.”

You have these issues—this is the issue of marriage—there’s not too many other issues I can think of that would go more fundamentally to what a culture and society is about.  It is being redefined by judges. What can the people do to respond to that kind of judicial usurpation?

Bork: Well, one thing they can do is amend the constitution, amend the state constitution. Of course, that doesn’t always work because the judges then--right now Jerry Brown in California is arguing, he’s the attorney general, he’s arguing that an amendment to the California constitution is unconstitutional.

Jeffrey: Right, this is Proposition 8.

Bork: Yeah. There’s no end to the gall of some of these folks. But amending the constitution is the clearest route.  Beyond that, the cures are longer term. They would involve replacing these judges with other judges.  If it’s an elective system, when they come up for reelection, vote them out and get new judges.  If it’s not, wait until they retire or die, and then get new judges.  But as long as we insist upon treating judges as the final word no matter what they say, we’re in trouble.

Jeffrey: Some in the United States Congress, some Republicans in the last time they had a majority, tried to pass legislation that would restrict the appellate jurisdiction of the Supreme Court in regard to marriage and some other issues. I take it you don’t think that’s an effective method?

Bork: No, because the Constitution elsewhere says that the judges in the state courts shall be bound by the United States Constitution. So, if you take away the jurisdiction of the federal courts, the state courts remain, and they will do the same thing--or many of them will. And there is no power in the Constitution to take away the jurisdiction of the state courts to apply the Constitution.

Some time ago, when I was at a conference with Warren Burger, who was then the chief justice of the United States--in the same hotel there was a conference of all the chief justices of the states--and I recall the head of that group coming down and saying to Burger that there is an attempt in Congress to take away your jurisdiction. If they do, we will follow your precedent anyway. So, taking away jurisdiction leaves it in the state courts and that is no solution.

Jeffrey: And the state courts actually have the authority under the Constitution to make those kinds of decisions?

Bork: State courts have to interpret and apply the United States Constitution as well as their own. 

Jeffrey: You say: The long-term solution is to get new justices and judges on the courts. It seems to, I think, a lot of conservatives that has been one of the main driving forces in American politics, particularly in the conservative movement, since at least the 1960s.  You get people elected to the Senate who are going to vote to confirm originalist justices to the Supreme Court and to the lower courts, to elect Republican presidents who would nominate these kinds of people to the courts, and yet, here we are forties years later, four decades of the political process, and we still have a court that usurps the legislative authority. 

Bork: Yes, and the Republican appointees are among the worst.  They keep counting on these new appointees, Republican appointees, to change the course of the court, and they have not.  They haven’t taken back a single one of the ACLU’s victories in the court.  There are probably many explanations for that which we needn’t go into here. But, so far, that hasn’t worked.  Now, the current group on the court, that is, the current group of “originalists” as you call them--people who believe in applying the Constitution as it was originally understood--start with Scalia, Thomas, Alito and Roberts--they, I think, will stick by their principles and won’t be shifted as so many Republican appointees have been.       

Jeffrey: There’s a core of four.

Bork: There’s four. Then, at that point, we run into problems.

Jeffrey: In one of your essays, you bring up a line that Justice Anthony Kennedy wrote--I believe it was in Lawrence v. Texas, I may be wrong—about the sweet mystery of life. What’s the animus behind that?

Bork: What’s the animus behind his--

Jeffrey: I mean the rationale.

Bork: I don’t know. Kennedy has puzzled me. He can be a very good judge. Given cases of the ordinary kind that courts deal with—anti-trust, tax, and so forth--he’ll do a very good job, a very solid job.  But you get him near something that looks like the Bill of Rights, and he gets rhapsodic and he writes these passages that can’t be understood except in the sense that they show he’s feeling like a poet.    

Jeffrey: And they have absolutely nothing to do with the Constitution of the United States.

Bork: No, nothing. Nothing whatever.

Jeffrey: You made an interesting observation, that the court--this is from the same essay:  “We are living with the vision of a Constitution that no longer exists. The reason is apparent.  The Constitution, which is for all practical purposes the Supreme Court, follows the elite culture.”  You point out that in the early part of the 20th century there was a dominant business culture that had the predominant influence on the court.  Under the Warren Court, I believe you say it was a socialist impulse that was dominant.  And you say sort of a ‘60s radicalism became dominant after that.   

Bork: Yes, the current court is a politically correct court.  I wouldn’t call it Sixties radical—well, it is--but it’s a quiet radicalism in robes.  Not the kind that we were familiar with smashing up the universities.  But, the fact is, the intellectual class—using that term very loosely about intellectuals—the professions, the media, Hollywood, the universities are all to the left of the American public in general.  And they are the group with prestige and they are the group that the court tends to follow.

Jeffrey: And they are the group that basically co-opted Justice Kennedy on these cultural and social issues?

Bork: Well, I don’t know whether they co-opted him or whether it was his own initiative. I’m not sure which.

Jeffrey: You suspect he may have had those views before he got on the court?

Bork: He may have. He may have. He does like to make grand statements. And he does.

Jeffrey: Looking at the direction that the court might go in the future—this idea of the cultural elite really having their values imposed on society through the court through non-legislative means--when President-elect Barack Obama was explaining why he opposed the confirmation of Chief Justice Roberts and Judge Alito, in both instances he gave what in my analysis was sort of a class-war argument against them, that they did not sufficiently look out for the interests of the poor and the downtrodden and classes of individuals that had been put-upon by American society, and that really it was the role of a judge to reach out and use judicial authority to somehow help these put-upon classes.  Do you think that may be a future direction the court is going to go in?

Bork: Well, they have done it in the past.  For a long time, they did it with respect to race relations.  And they’ve done it with respect to poverty.  I think he wants to accentuate it, which will be a very plain statement that it is the court’s business to have the correct social sympathies and to change the country in accordance with those sympathies.

Jeffrey: Do you think that’s moving back more toward the ethic of the Warren Court and a more socialist vision as opposed to the radical egalitarianism of—

Bork: The Warren Court was pretty radical egalitarian. But it is the Warren Court. In fact, I think Obama, as I recall, has criticized the Warren Court as not being radical enough.

Jeffrey: Right, in the redistribution of wealth.

Bork: Yeah.

Jeffrey: So you think he might go out and look for people to put on the Supreme Court who would use the authority of the court to forward redistributionist policies?

Bork: Yes, I think he would.

Jeffrey: One of the essays in your book, I believe the title of it is, “The Impossibility of Finding a Welfare Right in the Constitution.”

Bork: That was a Harvard professor, who had a theory about welfare rights in the Constitution and that was my reply to him.

Jeffrey: That it just simply isn’t there?

Bork: No, of course not.  A lot of things simply aren’t there that the court nevertheless rules.

Jeffrey: Obviously, the court can usurp authority and do things that maybe constitutionally the Congress could do, but it is not the court’s authority to do. When you look at the welfare state, do you think there actually was justification in the Constitution itself for the welfare-state programs that have become such a big part of our government today? I’m talking about Medicare, Social Security?

Bork: No, the difficulty with those things is that they clearly violate the Constitution as it was originally understood, but it is too late to go back. The country has now grown around that view of the power of the central government, and no court is going to take it away. I wouldn’t want to be the judge that announced that Social Security was dead.  I’d have to flee the country. 

Jeffrey: So there is a sort of legislative stare decisis?

Bork: Well, it’s a political stare decisis in a sense. The American people have shown that that’s what they want, and if a court tries to stop it not only will there be a constitutional crisis, but as the members of the group in the court who do try to stop it retire or die, the people will get the judges they want who will allow it.

Jeffrey: But what is the check then on a legislature that oversteps? Do you think the threat that the legislature, that Congress, will overstep its constitutional authority is as great as the court? 

Bork: Oh no. No, no. Let’s take out the classic cases you just talked about—Social Security, Medicare and so forth, the welfare state--because those are done deals as far as the Constitution is concerned, and you can’t undo them.  But no, I don’t see that: The legislatures were not about to rule for abortion on demand, which is what the court did.  The legislatures were not about to start working up towards same-sex marriage, which is what the court was doing with its ruling about homosexual sodomy.  The legislature was not about to do away with the death penalty, which the court is clearly whittling away with a view to getting rid of it.  No, the legislatures are—well, they have to stand for reelection and judges don’t.

Jeffrey: And that’s a good check on keeping them more in line with the Constitution?

Bork: Well, yes.  It’s not a completely adequate check, but it’s what we have.

Jeffrey: There are a number of essays in the book where you have this debate about the role of natural law in the law itself and then in judging.  You write at one point, this is in a 1992 essay, “The Natural Law and the Constitution”: “The formulation and expression of moral truths as positive law is, in our system of government, a system based on consent, a task confided to the people and their elected representatives. The judge, when he judges, must be, it is his sworn duty to be, a legal positivist.” So, a judge, particularly a justice on the Supreme Court, may not apply his own moral standards to a decision if it is not rooted in the constitutional principal?

Bork: No. No, he shouldn’t.  The trouble is if you pick up a book by some professor and it says we must interpret the Constitution according to moral philosophy, you are dealing with a liberal. If you pick up a different book and it says in accordance with natural law, you are dealing with a conservative. But they are both simply ways of changing the Constitution in directions that the judge likes.  

Jeffrey: Right. If you’re a judge. But if you are a member of the United States Congress, however, it’s a different question. 

Bork: Well, of course.  A member of the public, or a member of the Congress, you are entitled to vote your best moral understanding. You should vote your best moral understanding.  But the judge’s duty is to take his morality from outside himself, from some legitimate lawgiver, and not make it up. Now, there are a number of reasons for that. One that is not mentioned often enough is that if the legislature makes a mistake, it can change.  If the court makes a mistake, nobody can change it unless the court decides it was wrong and changes it itself.

Jeffrey: And you have this long political process we’ve had since, for example, Roe v. Wade in 1973, where there hasn’t been an ability to change it.  Let me ask you this: In the Western tradition, going back, you have Cicero, you have Aquinas, you have Blackstone, you have Thomas Jefferson and the Declaration of Independence, all articulating this principle that there is a God, there is a natural law that comes from God, and that the positive law, or the laws that men make, have to comport with that natural law.  Do you ascribe to that principle?

Bork: It depends on what you mean by “have to comport.”  If somebody writes a law, and it’s positive law, and somebody else says that violates natural law, that’s a political argument, that’s not an argument for just ignoring the law. 

Jeffrey: Right. But one person would be right and one person would be wrong?

Bork: Maybe.

Jeffrey: On some things.

Bork: Yes, some things.

Jeffrey: In other words, there are absolute moral truths that are knowable by man.

Bork: Probably, but if you look at—You know, Harry Blackmun wrote an opinion, a dissent with four justices, in favor of homosexual sodomy as a constitutional right. That was before it became one.  And he based it upon, he said: It is a moral fact that a person belongs to himself and not to others or to society as a whole. Now, that’s some moral fact.  It means you haven’t got any obligations to your family, to your neighbors, to your country because you belong to yourself and that’s it.

Jeffrey: But it seems to me that Harry Blackmun is making two mistakes there.  One is he is making the mistake misapprehending what the moral law actually is. He’s simply wrong about that.  But the second one is usurping authority as a judge in trying to impose his vision of the natural law on the positive law, which he doesn’t have the authority to do.  But the fact that he is mistaken about what the natural law is doesn’t mean that there isn’t a natural law. 

Bork: Oh no. No, no. No, no. There may be. There’s a wide variety of them, and I haven’t chosen among them yet. But there certainly may be a valid natural law, but it has nothing to do with a judge’s duty.

Jeffrey: Right.  But let’s—Judge Bork, when you talk about the culture war in America, you get down to these very core issues like the right to life. Whether you can kill an unborn child?  What exactly a marriage is? What a family is? Here we are talking about fundamental moral issues. There has to be some authority for the individual and the legislator to refer to when the individual is deciding what to vote for in a referendum like California’s Prop 8 or when a legislator is trying to decide when the issue comes up on the floor. Shouldn’t we--Is it not true that there are absolute moral rules that apply to those particular issues that we do know?

Bork: Well, I would say that we ought to make an absolute ruling about that, but I don’t think there is anything in the universe that requires us to.  It’s, you know, it gets complicated because, you look at the opinion polls and opinion is steadily shifting in favor of same-sex marriage, and dramatically, so that we are likely to have same-sex marriage as a matter of democratic consensus within not too many years. Well, I suppose you could say that’s a violation of natural law. Somebody else would say it’s a fulfillment of natural law.

Jeffrey: Yes, but one person would be right and the other would be wrong. And here’s where the natural right of a third party would come in.  If the state sanctions same-sex marriage and makes it equivalent to traditional marriage, then one of the things—and, in fact, President-elect Obama favors this—that would go along with that is the adoption of children.  So that you would then have by force of law, the state’s authority saying that this child, even this baby, even this newborn baby, maybe this artificially conceived baby, the homosexual married couple would have a right to adopt that child. Now, a fundamental moral question would then be whether the rights of the child are thus being infringed upon. And if they are, isn’t there a correct or incorrect answer to that?  Is that really something that ultimately is up for debate?         

Bork: Oh, it’s up for debate. Everything is up for debate these days. I can’t think of anything that isn’t. But I think it’s true that that would be an infringement of the child’s best interests, which I suppose translates as his natural right. But we are going to see in the near future a terrible conflict between claimed rights of homosexuals and religious freedom. You are going to get Catholic hospitals that are going to be required as a matter of law to perform abortions.  You are going to get Catholic or other groups’ relief services that are going to be required to allow adoption of a child by homosexual couples.  We are going to have a real conflict that goes right to the heart of the society.

Jeffrey: Let me ask you a constitutional question, and then I want to go on to the moral question underneath it: This question of forcing a Catholic hospital to do an abortion, or taking a child and handing it over to a homosexual couple in an adoption.  With the abortion, it is compelling someone to act against their conscience.  That is what the state is doing.  In one of your essays, you talked about the legitimate constraints on the positivist interpretation of the Constitution you have.  If I understood you correctly, what the judge needs to do is find the major underlying principle and apply it to the modern situation, because obviously the Framers could not have imagined this sort of situation.

Bork: No, no. That’s right.

Jeffrey: Do you see a principle of freedom of conscience anywhere in the Constitution that prohibits the government from coercing a religious hospital to do an abortion? 

Bork: Well, the free exercise of religion clause might fulfill that role. 

Jeffrey: Explicitly.

Bork: Yeah.

Jeffrey: It’s forcing someone to act against their religion, therefore, it’s a violation of free exercise.

Bork: Yeah.

Jeffrey: Are you at all optimistic that the Supreme Court would uphold the right of Catholic hospitals not to coercively—

Bork: I don’t know. It depends upon Anthony Kennedy. Now, it’s a funny situation in which the moral life of a nation is in effect decided by one judge, because you have four solid liberal votes, four solid originalist votes, and one vote you can’t predict too accurately in advance.

Jeffrey: And, Anthony Kennedy happens to be a Catholic, but you would say that his Catholic faith ought to have no role in his decision?

Bork: Well, it certainly hasn’t.  In the Casey decision, which upheld the right to abortion, he wrote, along with two others, a special opinion. So that I don’t think--As a matter of fact, that’s correct, I don’t think he should impose his Catholic views on the Constitution, but in fact he hasn’t.

Jeffrey: Right. He hasn’t done that. He hasn’t applied the Constitution as written--

Bork: Well, there’s that, too.

Jeffrey: --And he hasn’t applied his Catholic principles to the Constitution.

Bork: That’s right.

Jeffrey: But here you would have a direct violation of the free exercise clause.  In your view, as of right now, the court would probably go five-four on that.

Bork: Oh, it would be five-four, but I don’t know which way.

Jeffrey: Depending on which way Kennedy went?

Bork: Yeah.

Jeffrey: There is another essay in your book which is about Thomas More, and which gets to a question that is very similar to this. I thought you had a very interesting argument. Ultimately, did Thomas More obey the law or disobey the law?

Bork: He disobeyed the king’s law.

Jeffrey: But he obeyed God’s law?

Bork: That’s what he said. Just before they took his head off, he said: I am the king’s good servant, but God’s first—as I recall.

Jeffrey: He wasn’t simply acting on his own opinion.  He was acting on fidelity to what he understood to be the law?

Bork: That’s right. I think More is misinterpreted if people see him as just a rugged individualist. He was a strong man, but he also was very strong for community and tradition, and so forth. In fact, when the king and the pope disagreed a number of times, and had terrible set-tos, More had no trouble agreeing with the king. It wasn’t until they got to this issue, which really struck at the basis of the pope’s authority on the morality of the Catholic faith that he got to the sticking point and wouldn’t move.

Jeffrey: He was ready to advocate the king’s cause on issues that he thought were reasonably disputable—

Bork: They were secular disputes and so forth. Because the pope had lots of secular power, and the king and the pope would sometimes, their interests would conflict.

Jeffrey: But this was a question of the supremacy of the pope over the church.

Bork: The question of the integrity of the church and the integrity of the faith.

Jeffrey: You write in your essay that there was a culture war in the 16th century when this happened.  Is it similar, in anyway, to the culture war we have in America today? 

Bork: I suppose all culture wars are similar in a sense. But that one, the contending parties were not the same. That is, you didn’t have an intellectual class that was lined up against a bourgeois class. It was largely a Protestant and Catholic dispute.      

Jeffrey: But over fundamental understanding of the relationship of man to God and God to the law. Which is similar to the sort of dispute we have in American culture today?  

Bork: I don’t think the disputants talk much about God anymore. That’s one of the things that I think is regrettable--and I know liberals have said the same thing, it is not a conservative position particularly--but it is regrettable that religion has dropped out of our public discourse.  I think it impoverishes it and makes it more violent.

Jeffrey: Our public discourse?

Bork: Violent in terms of—I am not talking about armed conflict, I am talking about violent language and propaganda.

Jeffrey: Given the fundamental questions that are being debated in America--marriage, life, whether or not there is a God and what sort of fidelity the state owes to God and his law--what do you think the consequences are for America if we continue down the path we are on today?

Bork: Which path are you talking about?

Jeffrey: The path toward where there is, the traditional moral norms, which used to be enforced culturally as well as in our law—

Bork: Well, I think you are now going down a path towards kind of a happy-go-lucky nihilism. A lot of people are nihilists. They don’t think about religion. They don’t think about ultimate questions. They go along. They worry about consumer goods, comfort, and so forth.  As a matter of fact, the abortion question is largely a question about convenience. If you look at the polls about why people have abortions, 90 percent of it has nothing to do with medical conditions. It’s convenience. And that’s I think an example of the secularization of an issue that ought to have a religious dimension.

Jeffrey: You say happy-go-lucky nihilism, but do you think a nihilistic society can remain happy-go-lucky for long?

Bork: I don’t know. I guess we are going to find out.

Jeffrey: Judge Bork, thank you very much.

Bork: I enjoyed it.


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