A Conspiracy of Judges?:

A Review of Robert H. Bork's Coercing Virtue


Friday, March 14, 2003

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Vintage Canada 2002)

In his latest despairing polemic, Coercing Virtue, former judge and unsuccessful Supreme Court nominee Robert Bork charges that in Canada, the U.S., and other western nations, liberal activist judges have managed to withstand strong conservative political winds, and place their own stamp on the courts.

Bork argues that the courts have become the principality of a "New Class" composed of liberal journalists, wooly-headed academics, mainline religious officials, and radical activists. They are like-minded, left-leaning, cloistered urban intellectuals - more or less the same forces that deprived him of his seat on the Court. Their "ruling passion," he claims, is victory in the storied culture wars. Their motivation, he asserts, is the "socialist impulse." Worse, the courts from which they toppled Bork are increasingly the source of their power.

Bork acolytes and critics alike will find much of interest in this brief book. It's a chilling but flawed vision of the real perils of judicial arrogance. Unfortunately, it's also evidence that Bork's once-keen sight has been deeply clouded by a one-sided, dystopian worldview.

Bork's Nightmare: The Triumph of Liberal Judicial Activism

Bork's target is "the recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries." Activist judges, in his view, "are those who decide cases in ways that have no plausible connection to the law they purport to be applying or who stretch or even contradict the meaning of the law."

Bork contends that, by advancing an ever-expanding version of what Mary Ann Glendon has called "rights talk," the courts have managed to turn the law into a version of liberal politics - to the detriment of law and politics alike. By departing from the original meaning of the constitutions they purport to interpret, Bork alleges, judges have managed to entrench their own liberal values into the law, despite the differences between those values and the values of the people.

Interestingly, Bork does not lay the responsibility for this phenomenon solely at the feet of particular judges. Rather, he suggests that the real villain underlying the ascendancy of the activist judiciary is judicial review itself - that is, the power of courts to strike down legislation, especially on constitutional grounds.

Bork sees judicial review as offering an invitation to judicial supremacy - one that liberal judicial activists have happily accepted, not only in the U.S., but elsewhere as well. And, he adds, "[e]verywhere judicial review has taken root," he writes, "activist courts align themselves with and enforce New Class values, shifting the culture steadily to the left."

Bork on the U.S.: The Supreme Court Is Still Too Liberal

Although Bork is convinced the phenomenon is widespread, he narrows his focus to a few legal systems: those of the United States, Canada, and Israel, with a brief look at the rise of international human rights law.

With respect to the U.S., Bork's analysis is familiar from his post-nomination books, The Tempting of America and Slouching Toward Gomorrah. The United States Supreme Court, he charges, has become "a political and cultural tribunal enforcing the values of the liberal intelligentsia" - furthering protections for pornography, abortion rights, homosexuality and radical feminism, while exhibiting a "fierce hostility" to religious expression.

Bork on Canada: A Liberal Court Ignores Proper Procedural Limits

In Bork's view, Canada's Supreme Court is no better than the U.S.'s. As with the U.S. Supreme Court, Bork omits a number of Canadian decisions that contradict his picture of liberal activism. But his picture of the Canadian court is more accurate: unlike the Rehnquist Court, it is plainly currently a liberal institution.

It is important to note, however, that the foundations of liberal constitutional law run deeper in Canada than in the U.S. Its Charter of Rights was ratified in 1982, not 1789. Its text differs from that of the U.S. Constitution. The political views of its framers more closely approximate modern values than do those of Jefferson and Madison. And Canada's different national and political culture means those modern values tend to be liberal values.

Nevertheless, Bork argues that the Canadian Supreme Court, while it has taken a more conservative view of freedom of expression and religion, remains "strikingly activist, perhaps more so than its American counterpart," in areas such as abortion rights and gay rights.

Bork asserts, in particular, that the Canadian courts fail regularly to impose any real limitations on standing (that is, who can bring a suit) or justiciability (that is, when it's proper for a court to decide a question). The result, Bork notes, is that Canadian courts retain greater discretion to decide controversial issues. This observation is accurate, though it is worth pointing out that this development predates the birth of the Charter.

Bork also notes that the Canadian Supreme Court has developed a doctrine similar to the U.S. Supreme Court's doctrine of "substantive due process," which was the basis for Roe v. Wade and other controversial decisions. Section 7 of Canada's Charter guarantees that no one shall be deprived of life, liberty, or security of the person "except in accordance with the principles of fundamental justice."

The Canadian Supreme Court has interpreted this language to embrace substantive as well as procedural rights - even though, as Bork points out, it's plain that the Charter's drafters used the term "fundamental justice" precisely to avoid that result.

Bork on Israel: A Nation In the Throes Of Judicial Revolution

Bork's most interesting, if somewhat shallowly developed, chapter is his attack on the Israeli Supreme Court and its leader, Aharon Barak. Israel, Bork writes, "has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere."

Both laws were passed by the Knesset in the middle of the night in the absence of most of its members, Bork notes. And this is certainly a disturbing fact - though it is really more disturbing than the exclusion of vast segments of society from the framing of the United States Constitution? In any event, as with the U.S. Constitution, the Israeli system is now predicated on the validity of these laws.

As with Canada's courts, the Israeli courts have proceeded largely unhindered by significant doctrinal limitations as to when they can take cases and reach even the most basic political issues. As a result, Bork points out, the Court has entered into such fraught areas as the balance between secular and religious Israelis and issues of national security.

However, assuming the Basic Laws are valid, perhaps they have had a mandate to do just that. Surely their protection of a person's "dignity, life, body, or property" is properly susceptible to broad interpretation. And as with Canada's Charter of Rights, those laws - passed in a modern era - may quite properly reflect modern values.

Bork on International Law: Another Type of Judicial Activism

Finally, Bork argues that international law is part of the phenomenon of global judicial activism.

In particular, he points to the growth of international human rights law and increasing attempts by local courts to assert jurisdiction over far-flung activities. (Think, for instance, of a Spanish judge's assertion of jurisdiction over Chile's former strongman Augusto Pinochet, and ongoing attempts by Belgian courts to try Ariel Sharon for his actions in Lebanon.)

Bork devotes equal vitriol to the European Court of Human Rights and the development of other international courts; the attempt to assert legal control over the rules of war; and the efforts of some judges - including Justice Breyer in the United States - to consult international treaties and the decisions of other countries for guidance on domestic constitutional issues.

Bork is troubled not only by the liberal tilt of these legal regimes, but also by the very vagueness of international law itself. He contends that it is rooted in no fixed political authority, and often simply echoes the consensus of international legal scholars with the same liberal political hue.

Evaluating Bork's Arguments: A Little Truth, But Not the Whole Truth

After all, scholars far more temperate than Bork have echoed Bork's observation. Michael Klarman, for example, has written persuasively that the constitutional values of the courts by and large reflect the liberal values of the ranks from which judges spring - the nation's well-educated, generally affluent "cultural elite."

As Klarman also observes, however, the courts have rarely acted in a sharply countermajoritarian fashion. Instead, they have sometimes imposed a national consensus on outlying regions or factions (for instance, aiding in desegregating the South). Or, alternatively, they have intervened on issues (such as abortion) that have divided the nation, with strong constituencies supporting both sides.

That's quite different from the wholesale imposition of radical liberal-left values - values that are purportedly entirely contrary to those of the rest of the nation - that Bork describes.

Explaining the Lack of Backlash Against "Imperial" Courts

Bork repeatedly laments that, "Oddly enough, the role of the courts . . . [in these countries] has not triggered a popular backlash." Why? He claims that the culprits are "public inertia and weariness." But what if the reason is simply that people - or, at least, many people - generally like the courts and their rulings?

Polls suggest, for instance, that the vast majority of Canadians actively support the Charter and the role of the Canadian Supreme Court. In addition, a clear majority believes the Court should have the final say on questions of fundamental rights. Tellingly, much of the strongest support for this position comes from Quebec - a province that is hardly warm to any vehicle for national supremacy - and Atlantic Canada, a region that is a stronghold of conservative politics.

In the U.S., there also seems to be far more support for the Court than Bork suggests - and not only because he underestimates how conservative the Rehnquist Court actually is. Granted, some of the Rehnquist Court's more liberal rulings may frustrate the current Republican majority. But it's worth remembering that that majority is razor-thin. And Al Gore - the winner of the popular vote, though not the Presidency - might not find those more liberal rulings outrageous at all.

If the culture wars have cooled down, maybe it's because many people have decided it's a draw. They want sound fiscal policy, good policing, and gender equality. Maybe, like Justice Kennedy, they support a more limited Commerce Clause and equal protection for gays and lesbians.

In short, maybe the courts - both here and abroad - do not frustrate the popular will, as Bork argues, but embody it. Bork's underlying lament, then, may not really be that the courts have usurped the popular will. Rather, it may be that the popular will has bypassed his own will. Bork positions himself as a Cassandra, prophesying doom. But the doom he's anticipating may be little more than the twilight of his own beliefs.

Paul Horwitz practices law at O'Melveny & Myers in Washington, D.C., and is a visiting lecturer at the University of Iowa College of Law. He has written extensively on questions of constitutional law and theory in the United States and Canada.

Readers interested in purchasing Bork's book should note that, while it is currently directly available only in Canada, the American Enterprise Institute, at which Bork is a Senior Fellow, has apparently scheduled the U.S. edition for publication later this year. It is also currently available on Amazon.com.

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