Jurisprudence — or Revolution?

By Kevin D. Williamson

Friday, March 06, 2020

With Joe Biden ascendant, at least for the moment, in the Democratic primary, Robert Bork has been on my mind. As I wrote in my column welcoming Biden to the front of the pack, the former vice president’s lunch-bucket shtick masks — is intended to mask — the fact that he is one of the great poisoners of American politics and political discourse, who, together with the sanctified Teddy Kennedy, organized and executed the smear campaign against Judge Bork when he was nominated to the Supreme Court.

Criticism of Bork — at the time and, in my inbox, as recently as Thursday morning — always has followed a predictable pattern of intellectual dishonesty. Bork’s judicial view (it is not quite a philosophy) is that the law says what it says, and that the interpretive task of judges is to operate within the boundaries of what the law actually says, guided in part by what the words were meant to indicate at the time the law was enacted, rather than to begin with their own idea of justice, their own preferred outcome, and then try to shoehorn their own preferences into the language of the statutes and the Constitution. If we are to have the rule of law in a meaningful sense, then judges are obliged to do this even when they disagree with the law in question or believe it to be unjust. The alternative is Senator Sanders’s favorite word: oligarchy, in this case a nine-headed Caesar (Antonin Scalia’s memorable phrase) empowered to overrule the democratically elected lawmaking bodies and the Constitution itself any time five of its members wish.

And so Bork was tarred with every objectionable or outrageous outcome that was, in his view, permissible under the law, irrespective of whether he believed it to be wise or just. Hence the litany of “Robert Bork’s America,” in which all manner of injustice would be permitted so far as the Supreme Court is concerned. Never mind that the responsibility for making laws falls on Congress, not on the Supreme Court. And never mind that the Constitution explicitly permitted such horrors as slavery and such injustices as the disenfranchisement of women until it was amended to address these.

There are two ways of considering an unjust law.

The first is the Bork model: The law as written would allow for unjust outcome x, and when a case involving x is put before a judge, that judge must uphold the law, irrespective of the justice of x or his opinion of it. Where the law is clear or silent, the judge is bound — over to you, Congress.

The second model is the model of what we sometimes call “judicial activism.” The law as written would allow for unjust outcome x, but the judge sets aside the law and prohibits x anyway, believing that the demands of justice here supersede the claim of the law. The judge may in fact be in the right as a matter of justice, but he is in the wrong as a matter of law, and in choosing the former over the latter he has ceased to be a judge and has become a revolutionary — because if the law is illegitimate, the legislature and the legislative process must be illegitimate as well.

There is a case — a very fine and honorable one that is dear to my heart — for disobeying unjust laws. It is necessary to make fine distinctions, of course, because setting aside the law is a serious and dangerous thing. It is not a thing for judges to do: John Brown and John McLean may have had the same view of slavery, but Justice McLean was in the law business and John Brown was in the outlaw business.

Those who engage in such civil disobedience must always be prepared to pay the price — rather than, say, cowering behind lifetime tenure on a high court. As Mohandas K. Gandhi put it:

The law-breaker breaks the law surreptitiously and tries to avoid the penalty; not so the civil resister. He ever obeys the laws of the state to which he belongs, not out of fear of the sanctions, but because he considers them to be good for the welfare of society. But there come occasions, generally rare, when he considers certain laws to be so unjust as to render obedience to them a dishonour. He then openly and civilly breaks them and quietly suffers the penalty for their breach. And in order to register his protest against the action of the law-givers, it is open to him to withdraw his co-operation from the state by disobeying such other laws whose breach does not involve moral turpitude.

Judge Lois Forer provided an example of what to do when the law conflicts with a judge’s sense of justice. When she was obliged to impose a sentence that she believed to be draconian and inappropriate — a sentence demanded by a 1984 crime bill advocated by Senator Joe Biden and Senator Strom Thurmond — she did the honest thing and resigned, writing:

I was faced with a legal and moral dilemma. As a judge, I had sworn to uphold the law, and I could find no legal grounds for violating an order of the Supreme Court. Yet five years’ imprisonment was grossly disproportionate to the offense. . . . Given the choice between defying a court order or my conscience, I decided to leave the bench where I had sat for 16 years.

The Supreme Court is considering a Louisiana law regulating abortion providers. There is not one word about abortion in the Constitution, pro or con, but since the 1973 Roe decision, in which the Court ignored the law and imposed its own preferred outcome as a previously undiscovered constitutional mandate, abortion has been treated by progressives as a constitutionally self-evident question, practically on par with the First Amendment. (Don’t ask them about the Second.) Senate majority leader Chuck Schumer is out there threatening Supreme Court justices by name, individually and collectively — that’s how strongly Democrats object to the notion that the law says what the law says, and not what people with transient political power wish for it to say at any given moment in any given situation. Their fear of that simple principle is telling. It says more than they intend about their conception of government, law, and liberty.

Perhaps Justices Ginsberg, Sotomayor, Kagan, and Breyer believe that to follow the law in this case would be to impose an unjust outcome. Perhaps they are correct.

If so, they should know what to do. Judge Forer did.