Most members of the Court seem to be gnostics, firmly believing they have access to wisdom denied the rest of us. "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court?" Scalia has asked. "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."
This last term was unusually rich in examples. The Court moved a long way toward making homosexual conduct a constitutional right, adopted the radical feminist view that men and women are essentially identical, continued to view the First Amendment as a protection of self- gratification rather than of the free articulation of ideas, and overturned two hundred years of history to hold that political patronage is unconstitutional.
A few cities in Colorado, reflecting the political influence of homosexuals, had in recent years enacted ordinances prohibiting discrimination on grounds of sexual orientation. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. A person with a room to rent, for example, could not turn away a homosexual couple. In a statewide referendum Coloradans adopted a constitutional provision, Amendment 2, which precluded local governments from adopting such provisions. The Supreme Court, in an indecipherable opinion (Romer v. Evans), held that this denial of special status to homosexuals violated the equal protection clause of the Fourteenth Amendment. The theory, apparently, was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."
To the contrary, any constitutional provision does what Amendment 2 did- it removes from some groups the capacity to alter the law except at the state or federal level. If one took the majority's assertions seriously, as Scalia's dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. The State of Utah, for example, was admitted to the Union only on condition that its constitution's prohibition of polygamy could not be revoked without the consent of the United States-thus requiring polygamists to persuade the entire nation and not simply the voters of Utah. Matters are even worse than that, however. Under what appears to be the majority's rationale, it is difficult to see how any federal or state statute could be constitutional. Persons adversely affected by any national or state law are by definition unable to get relief at the local level. If homosexuals in Colorado were unfairly burdened by Amendment 2, then we are all unfairly burdened by the very existence of federal and state law.
The majority did not even mention the ten-year-old decision in Bowers v. Hardwick, which had held, in keeping with long- standing constitutional understanding, that a state may make homosexual conduct a criminal offense. Since the Court has now held that the denial of special status to homosexuals is unconstitutional, Bowers must be taken to have been silently overruled.
Romer is a prime instance of "constitutional law" made by sentiment having nothing to do with the Constitution. What can explain the Court majority's decision? Only the newly faddish approval of homosexual conduct among the elite classes from which the Justices come and to which most of them respond. We are on our way to the approval of homosexual conduct, despite the moral objections of most Americans, because the Court views such moral disapproval as nothing more than redneck bigotry.
The cultural elite have more fads than one, however. Radical feminism overrode the Constitution in United States v. Virginia, which held, seven votes to one, that the equal protection clause required Virginia Military Institute to admit women. VMI had been an all-male military college for over 150 years and had coexisted peaceably with the said equal protection clause for 128 of those years. The historic understanding was that such single-sex schools were fully consistent with the Constitution. VMI provided "adversative methods" of training, which meant a program that was extremely rigorous mentally, physically, and emotionally. The admission of women will change the nature of the institution; women will not get what they supposedly sought: VMI training. Only sterile feminist logic could lead anyone to imagine that there are no inherent differences between men and women in these matters.
Once again, Justice Scalia (Justice Thomas took no part because his son attends The Citadel, another all-male military college) destroyed the majority opinion. "Much of the Court's opinion is devoted to deprecating the close-mindedness of our forbears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. . . . The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter- majoritarian preferences of the society's law-trained elite) into our Basic Law."
Scalia understates how radical an antidemocratic course the Court has taken. The Justices are not inscribing current preferences of our society into the Constitution, for those preferences can be easily placed in statutes by legislatures. When the Court declares a statute unconstitutional it overrides current popular desires. The counter-majoritarian preferences are not simply those of a law-trained elite, but those of a wider cultural elite that includes journalists, academics, entertainers, and the like. If only a law-trained elite were involved, the Court could not do what it is doing.
Also during this past term, the Court majority struck down, on First Amendment grounds, a federal statute which required cable television operators who leased access to channels to others to segregate on a single channel "patently offensive" depictions of sexual activities or organs. The operator had to block that channel from viewer access and to unblock it only upon a subscriber's written request. The Court found this speech-restrictive, continuing its transformation of the First Amendment as a guarantee of the free exchange of ideas to a guarantee of individual self-gratification.
In a pair of cases, the Court found that normal patronage by government violated, of all things, the First Amendment. A company was removed from the list of available companies to perform towing services for a city, allegedly because the owner had supported the mayor's opponent in a reelection campaign. Another city terminated a trash hauler's at-will contract, allegedly because the hauler had been an outspoken critic of the Board of County Commissioners. Such practices are as old as the nation and are regulated by innumerable statutes, but the Court suddenly elevated patronage to the level of a First Amendment violation.
Not one of these five decisions bears any resemblance to the actual Constitution. There is no question of a mistake being made. The Justices know full well what they are doing, which means that Scalia and Thomas are right: a majority of Justices have decided to rule us without any warrant in law. If there is an "actual" Constitution it can only be the set of principles those who made the Constitution law understood themselves to be ordaining.
The idea that the Constitution should be interpreted according to that original understanding has been made to seem an extreme position. That is convenient for those who want results democracy will not give them, but the truth is that violation of original understanding ought to be the extreme position. Would it be legitimate for a judge in the United Kingdom, which has no constitution comparable to ours, to strike down an act of Parliament on the ground he did not like it? Obviously not. But a U.S. judge who goes beyond the Constitution behaves like the hypothetical U.K. judge. Democratic theory requires that a judge set the majority's desires at naught only in accordance with a superior law-in our case, the written Constitution. A judge who departs from the Constitution, as the majority did in the five cases mentioned, is applying no law other than his will. Our country is being radically altered, step by step, by Justices who are not following any law.
This is not entirely new. During the nineteenth century, the Court often made up its own Constitution, most notoriously in the 1857 decision in Dred Scott v. Sandford. Chief Justice Roger Taney's opinion for the Court found a constitutional right, good against the federal government, to own slaves. But it wasn't until this century, when the Court invented the theory that the Bill of Rights limited states as well as the federal government, that the opportunities for judicial government exploded. The First Amendment speech clause has been made a guarantor of moral chaos, while its religion clauses have been reshaped to banish religious symbolism from public life. The Court invented a right of privacy and used it to create a wholly specious right to abortion. The list of such incursions into the legitimate sphere of democratic control goes on and on.
Lower courts, state and federal, catch the fever. Hawaii's Supreme Court is about to make marriage between homosexuals a constitutional right. Connecticut's court has ruled that racial imbalance in public schools violates the state constitution even though the imbalance is a result of residential patterns and not the product of any government action. Two federal courts of appeals have invented a constitutional right to assisted suicide, and one court is apparently willing to extend the right to euthanasia. God knows what will come next.
On the evidence, we must conclude, I think, that this tendency of courts, including the Supreme Court, is the inevitable result of our written Constitution and the power of judicial review. Even in the depths of the Warren Court era some of us thought that the Court's performance, though profoundly illegitimate, could be brought within the range of the minimally acceptable by logical persuasion or the appointment of more responsible judges, or both. We now know that was an illusion. A Court majority is impervious to arguments about its proper behavior. It seems safe to say that, as our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity.
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
The illegitimacy of the Court's departures from the Constitution is underscored by the fact that no Justice has ever attempted a justification of the practice. At most, opinions have offered, as if it solved something, the observation that the Court has never felt its power confined to the intended meaning of the Constitution. True enough, but a long habit of abuse of authority does not make the abuse legitimate. That is particularly so when the representative branches of government have no effective way of resisting the Court's depredations.
Viewing the carnage created by the Court, George Will referred to the Justices as "our robed masters." When the VMI decision came down, my wife said the Justices were behaving like a "band of outlaws." Neither of those appellations is in the least bit extreme. The Justices are our masters in a way that no President, Congressman, governor, or other elected official is. They order our lives and we have no recourse, no means of resisting, no means of altering their ukases. They are indeed robed masters. But "band of outlaws"? An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done.
The astonishing thing is that anybody is surprised at this. Without realizing quite what they were doing, generations of Americans have accorded all courts, and most especially the Supreme Court, unchecked power. We ought to have known what would inevitably happen. Lord Acton's famous aphorism about power corrupting turns out to be right: Given unchecked power, most human beings, even those in robes, will abuse that power.
Only a change in our institutional arrangements can halt the transformation of our society and culture by judges. Decisions of courts might be made subject to modification or reversal by majority vote of the Senate and the House of Representatives. Alternatively, courts might be deprived of the power of constitutional review. Either of those solutions would require a constitutional amendment. Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision.
That suggestion will be regarded as shocking, but it should not be. To the objection that a rejection of a court's authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience. The Taney Court that decided Dred Scott might well have decided, if the issue had been presented to it, that the South had a constitutional right to secede. Would Lincoln have been wrong to defy the Court's order and continue the Civil War? Some members of the Supreme Court were edging towards judging the constitutionality of the war in Vietnam. Surely, we do not want the Court to control every major decision and leave only the minutiae for democratic government.
The truth, however, is that I must end on a pessimistic note. The Court will not be reformed by persuasion or by changes in its membership. But the public appears supine, willing to watch democracy slip away. Can public apathy ratify what the Court is doing? Not in our constitutional tradition, it can't. If a real constitutional right of one person is being violated with the unanimous approval of the rest of the United States, we have always held that the right must be vindicated regardless. Under our Constitution, each of us has a right to representative government and no amount or length of majority inertia can legitimate what the Court is doing to that right.
Robert H. Bork is the John M. Olin Scholar in Legal Studies at the
American Enterprise Institute and author of The Tempting of
America: The Political Seduction of the Law. His latest book is
Slouching Towards Gomorrah: Modern Liberalism and American
Decline (Regan Books/HarperCollins).