Judge Robert Bork has died at the age of 85.
Bork was best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the “Madisonian” or “counter-majoritarian” dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided bythe framers’ original understanding of the United States Constitution. Reiterating that it is a court’s task to adjudicate and not to “legislate from the bench,” he has advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame “neutral principles” … and not simply ad hoc pronouncements or subjective value judgments. …
He has written, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”
Roger Kimball writes at PJ Media:
Judge Robert H. Bork, one of the the greatest jurists this country has ever produced, died early this morning from heart complications in a Virginia hospital near his home. …
Bork was a national celebrity. … [His] celebrity was only partly conferred upon him by brilliant legal work and his service as solicitor general and then acting attorney general in the tumultuous Watergate years of the Nixon administration. … By far the most important fuel for fame was the riveting, not to say obscene, attack upon his candidacy for the Supreme Court in the 1980s under Ronald Reagan.
The vicious campaign waged against Judge Bork set a new low—possibly never exceeded—in the exhibition of unbridled leftist venom, indeed hate. Reporters combed through the Borks trash hoping to find compromising tidbits; they inspected his movie rentals, and were disgusted to find the films of John Wayne liberally represented. So hysterical was the campaign against Judge Bork that a new transitive verb entered our political vocabulary: “To Bork,” scruple at nothing in order to discredit and defeat a political figure. Monsieur Guillotine gave his name to that means of execution; “progressives,” those leftists haters of America who have so disfigured our national life since the 1960s, gave us the this new form of character assassination.
The so-called “Lion of the Senate,” Ted Kennedy, surely one of the most despicable men ever to hold high public office in the United States (yes, that’s saying something), stood on the Senate floor and emitted a series of calumnious lies designed not simply to prevent Judge Bork from being appointed to the Supreme Court but to soil his character irretrievably.
“Robert Bork’s America,” quoth Kennedy – “is a land in which women would be forced into back-alley abortions, blacks would sit down at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of democracy.”
A breathtaking congeries of falsehoods … In The Tempting of America, Judge Bork recounts his incredulity at this tissue of malign fabrication. “It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did.” At the time, he notes, many people thought that Kennedy had blundered by emitting so flagrant, and flagrantly untrue, an attack. They were wrong. His “calculated personal assault, . . . more violent than any against a judicial nominee in our country’s history,” did the job (with a little help from Joe Biden and Arlen Specter. Not only was Kennedy instrumental in preventing a great jurist from taking his place on the Supreme Court, he also contributed immeasurably to the cheapening of American political discourse.
In a way, Robert Bork had the last laugh. Ted Kennedy went to his grave a rancid, lumbering, pathetic laughing stock. Bork went from intellectual triumph to intellectual triumph, contributing now-classic studies to the library of legal understanding and penning two of the most important works of social criticism of the last several decades, the aforementioned Tempting of America and Slouching Toward Gemorrah.
And this is from Commentary, by John Podhoretz:
Nothing like the campaign to deny Bork the Supreme Court had ever been seen before. It was a systematic campaign of personal destruction undertaken by liberal interest groups who had come to see the growing conservatism of the Reagan-era judiciary as an existential threat to them. Only a year earlier, Antonin Scalia had been affirmed by a 98-0 vote in the Senate, but in the interim, Democrats had taken hold of the body in the 1986 elections and the stage was set for a new era of personal destruction in the pursuit of a supposedly higher good.
Bob Bork became a sacrificial lamb for, among others, Ted Kennedy, who libeled him with the preposterous allegation that Bork wanted to return America to the days in which women got abortions with coat hangers. Why? For the crime of arguing, honestly and correctly, that Roe v. Wade, which somehow found a right to abortion in the language of a document that never mentioned abortion, was a travesty. …
Almost a quarter century after his “Borking,” the judicial transformation his character assassination was designed to help prevent has happened anyway. In a brilliant article we published a few months ago, called Bork Won, Adam J. White lays out the enduring legacy of this remarkable and complicated man, who was left on the far shore but got to watch as the people who followed him crossed the river and took his journey forward.
We would very much like to believe that Bork won. But we find it hard. Remembering that the Obama appointees Judges Elena Kagan and Sonia Sotomayor are sitting on the bench of the Supreme Court; and considering that “conservative” Chief Justice John Roberts rescued Obamacare from the oblivion it deserves; and observing that judges increasingly apply sharia in preference to US Constitutional law; and noticing the probability that Obama, re-elected for another four disastrous years, may have the opportunity to appoint another progressive judge or two, we fear that justice itself is more than likely to be “Borked”.
Why did Chief Justice Roberts betray the hope that a majority of Americans had placed in him to preserve such freedom as they still possessed?
Was it moral cowardice and personal vanity?
Some believe it was. This is from an IBD editorial:
According to a report by CBS News, Roberts switched his position at the same time the White House, the Democratic Senate and their henchmen in the media made a full frontal assault on him.
In an unseemly move that smacked of intimidation, President Obama warned the court it would be “an unprecedented extraordinary step” for the court to overturn his signature health law. The head of the Senate Judiciary Committee singled out Roberts himself. Patrick Leahy, D-Vt., mau-maued him to uphold ObamaCare and maintain “the proper role of the judicial branch.”
The Washington media piled on by demonizing Roberts as partisan. The orchestrated campaign to save ObamaCare included reports warning of damage to the court and to Roberts’ reputation if they voided the law.
Unlike many justices, Roberts “pays attention to media coverage,” CBS says, and he’s highly “sensitive” to how he and the court are perceived by the public.
The last thing Roberts wanted was the Congressional Black Caucus branding him racist for denying the first black president his signature achievement.
Suddenly Roberts, sold by the Bush White House as a solid constitutional conservative, went “wobbly.” Anthony Scalia and other conservatives on the bench spent a full month trying to bring him back to his original position.
But Roberts held firm. And conservatives told him he was on his own. They wrote a highly unusual dissent that deliberately ignored his decision. …
He played politics, which is beyond outrageous. Roberts … expanded government power by giving Congress license to impose taxes to regulate behavior.
If Roberts wanted to make the court look politically neutral, he failed miserably. Nothing could be more political than the head of the bench rewriting bad law to avoid appearing political. If Roberts hoped to burnish the court’s reputation, he succeeding only in staining it.
Roberts could have stopped one of the most glaringly unconstitutional laws ever written, and did not.
This is his legacy.
If it is true that he upheld Obama’s socialist health care law for fear of being hated and accused by the Left, and as a result is now hated and accused by the Right, what has he gained?
His feelings should not have been a factor in his judgment. To be reviled by vile people is a compliment and an honor.
The fear of being hated and reviled is seen by Dennis Prager as so widespread as to account for the success of the Left. He portrays the Left as a cohort of bullies, and the Right as consisting all too largely of cowards.
Given how many more Americans define themselves as conservative rather than as liberal, let alone than as left, how does one explain the success of left-wing policies?
One answer is the appeal of entitlements and a desire to be taken care of. It takes a strong-willed citizen to vote against receiving free benefits. But an even greater explanation is the saturation of Western society by left-wing hate directed at the right. The left’s demonization, personal vilification, and mockery of its opponents have been the most powerful tools in the left-wing arsenal for a century. …
The Left has labeled its ideological opponents evil. And when you control nearly all of the news media and schools, that labeling works. …
What matters to most of those who speak for the left is not truth. It is destroying the good name of its opponents. That is the modus operandi of the left. …
To protect himself from vilification by the Left was “the overwhelmingly likely motivation of Chief Justice John Roberts to declare the ObamaCare individual mandate constitutional despite his ruling that, as passed, the mandate was in fact unconstitutional.”
[He] and his conservative colleagues on the Supreme Court have been the targets of media and academia vitriol and personal invective for years, and in some cases, decades. But while his conservative colleagues don’t care, Justice Roberts does.
As reported by CBS News:
“Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending . . . . They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
“But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public. [“The public” means liberal media and academics.]
“There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate.
“Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.”
[His] change reassure[s] progressives that ridicule, demonization, and character assassination work. With the stakes so high in the forthcoming election, expect it to only increase.
Thomas Sowell does not deny that motives of cowardice and vanity moved Roberts, but thinks the question of motive is “ultimately irrelevant”. What he accuses Roberts of is dereliction of duty.
Roberts was wrong in assessing where his duty lay.
Betrayal is hard to take, whether in our personal lives or in the political life of the nation. …
Chief Justice John Roberts need fear no such fate because he has lifetime tenure on the Supreme Court. But conscience can be a more implacable and inescapable punisher — and should be. …
The Chief Justice probably made as good a case as could be made for upholding the constitutionality of ObamaCare by defining one of its key features as a “tax.”
The legislation didn’t call it a tax and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the long-standing principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.
But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious, that ObamaCare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?
These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States.
John Roberts is no doubt a brainy man, and that seems to carry a lot of weight among the intelligentsia — despite glaring lessons from history, showing very brainy men creating everything from absurdities to catastrophes. Few of the great tragedies of history were created by the village idiot, and many by the village genius.
This Supreme Court ruling that the conservative Chief Justice Roberts shockingly swung to uphold the socialist health care law, consummates the tragic story of “the decline of individual freedom in America, and the wrecking of the best medical care in the world”.
And instead of confirming the Constitution, controverts it.
There are many speculations as to why Chief Justice Roberts did what he did, some attributing noble and far-sighted reasons, and others attributing petty and short-sighted reasons, including personal vanity. But all of that is ultimately irrelevant.
What he did was betray his oath to be faithful to the Constitution of the United States.
Who he betrayed were the hundreds of millions of Americans — past, present and future — whole generations in the past who have fought and died for a freedom that he has put in jeopardy, in a moment of intellectual inspiration and moral forgetfulness, 300 million Americans today whose lives are to be regimented by Washington bureaucrats, and generations yet unborn who may never know the individual freedoms that their ancestors took for granted.
Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath – and retaliation – of those in Congress who have been railing against Justices who invalidate the laws they have passed. Many in the media and in academia have joined the shrill chorus of those who claim that the Supreme Court does not show proper “deference” to the legislative branch of government.
But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.
John Roberts has betrayed the people who looked to him to preserve the freedom the Bill of Rights granted them. He has validated a law that changes everything the United States of America was founded on and for.
On this Independence Day, that is the tragic fact Americans have to face, assimilate, and adjust to. They have been changed into a different kind of nation.
Zwei Seelen wohnen, ach! in meiner Brust
Die eine will sich von der andern trennen
(Two souls, alas, dwell in my breast
The one would sever itself from the other)
– Goethe: Faust I.
We deplore the ruling of the Supreme Court, issued yesterday, that upholds Obamacare (the Patient Protection and Affordable Care Act).
Why did Chief Justice Roberts, whose vote decided whether the tyrannous law should stand or fall, vote to let it stand?
A plausible – but not consoling – explanation is offered by Charles Krauthammer.
Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of ObamaCare. How? By pulling off one of the great constitutional finesses of all time.
He managed to uphold the central conservative argument against ObamaCare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.
Why did he do it? Because he carries two identities.
Jurisprudentially, he is a constitutional conservative.
Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.
As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that ObamaCare’s individual mandate is a proper exercise of its authority to regulate commerce. That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?
But now government can do it not under the Commerce Clause, thanks to the ruling. Mr. Jones can be ordered to do anything, and be fined if he doesn’t, on the grounds that the fine is a tax.
“The Framers … gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”
That’s Roberts, philosophical conservative.
But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held …
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.
ObamaCare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress.
So it is up to the voters to decide in November whether they want a government that is their master or their servant.
To choose between tyranny and freedom.