Throwing Stones at Mt. Olympus…& Sipping Black Label

 

The Honorable Robert Bork delivered Heritage’s Center for Legal and Judicial Studies inaugural Joseph Story Lecture last night titled “A Republic – If You Can Keep It.”

 

I attended the lecture, and enjoyed it very much. Bork’s wit surprised me. He is not a stodgy old man. He is good humored and carries the gracious compensation of age as though a tired body and a wise mind were light things.

 

Bork’s lecture dealt with the state of our current judicial system and the way in which it is now an institution that undermines our republican form of government.

 

One significant problem is what he called “Olympianism.” This is a reference to the mountain of the gods in Greek myth from which the gods descend to interact with mortals.* Intellectual elites are like this, said Bork, “they are willing to share their superior knowledge or they will impose it on us.” He explained that in courts all over the globe, not just in America, courts rule for themselves the authority of judicial review and then start making laws instead of judging questions of the law. In America, these Olympians prefer to pack the courts with imperialistic judges rather than abide by the Constitution.

 

The scene grows darker because the Supreme Court is the only institution in our country that claims finality. There are certain court decisions that cannot be reversed because they are too deeply set into the American mind and system. Bork cited court cases involving entitlements – Social Security, Medicare, Medicaid – as example. Conservatives can try to make certain liberal things more conservative, but they cannot replace them with conservative things.

 

In Federalist 78, Alexander Hamilton said that the judiciary will always be the least dangerous branch of government because it has neither the sword nor the purse, nor force or will, just judgment. To contrast this, Bork quoted Supreme Court Justice Anthony Kennedy who is on record saying, “a Justice has the opportunity to shape the destiny of a country.”

 

Justice Kennedy had in mind his status as the swing vote on the Supreme Court. Justices Thomas, Scalia, Roberts, and Alito are Originalists in their interpretations of the Constitution whereas Justices Stevens, Souter, Ginsberg, and Breyer have an organic view of the Constitution which, said Bork, boils down to little more than a subjective moral philosophy. They believe that the Constitution’s original sense has expired and is now obsolete. Between these two voting blocks, Kennedy casts the deciding ninth vote. This instance of one man rising above the supreme law of the land, the Constitution, and making laws according to his personal moral philosophy, should be shocking and dismaying, said Bork.

 

Bork said there is no legal rationale for Roe v. Wade, and that the Supreme Court’s opinion in the case that legalized abortion is simply Justice Blackmun’s personal moral philosophy and has no bearing under the Constitution that could withstand rigorous scrutiny. An Originalist interpretation of the Constitution, Bork followed, is the only way to have constitutionalism that doesn’t slip into the rule by judges.

 

Joseph Story, after whom the lecture series is named, was a Supreme Court Justice from 1811 to 1842. He is remembered for being the youngest Justice appointed at 32 years of age and for his original-intent fidelity to the Constitution. Bork pointed out that Story was a man who would change his mind if a good enough argument warranted. When Story became a Justice, he was a Teetotaler, a position he later relinquished.

 

Not coincidentally, when the Heritage lawyers host an event, they don’t mess around. Wine and beer is served at an open bar after most evening events, but rarely is liquor served as well. I relished a couple thumbs of Black Label then hopped the metro for home. 

 

* In Q&A, someone asked Judge Bork what he thought about being verbed. After his Supreme Court nomination hearings in which the Senate rejected him, someone coined the phrase “to be Borked” which means something like “to have foes distort your record.” Bork’s reply was, “It is a sort of immortality.”