Overruled (11 page)

Three

“Robert Bork's America”

On July 1, 1987, President Ronald Rea
gan introduced the American people to the man he had selected to replace retiring Justice Lewis Powell on the U.S. Supreme Court. Robert Bork “is recognized as a premier constitutional authority,” Reagan announced, with the nominee standing by his side. A former solicitor general of the United States, a distinguished former professor of law at Yale University, and a sitting judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, Bork did indeed come well qualified for the position. Furthermore, Reagan continued, Bork is “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint,” which the president described as the view “that under the Constitution it is the exclusive province of the legislatures to enact laws and the role of the courts to interpret them.” As a justice, Reagan concluded, Robert Bork “will bring credit to the Court and his colleagues, as well as to his country and the Constitution.”
1

Less than an hour later, Senator Edward “Ted” Kennedy of Massachusetts, a prominent liberal Democrat, took to the floor of the Senate to offer a very different take on Reagan's pick. “Robert Bork's America,” Kennedy declared, “is a land in which women would be forced into back-alley abortions, blacks would sit 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 our democracy.”
2

Although Bork would later spend five grueling days in September sparring with Kennedy and other members of the Senate Judiciary Committee over his legal views, the basic script for his entire confirmation process had been set on that first fateful day. Following Reagan's lead, Bork's Republican supporters characterized him as the heir to a long and noble tradition of responsible judging, a tradition firmly rooted in the judicial deference favored by the turn-of-the-century Progressive movement. “I would ask the committee and the American people to take the time to understand Judge Bork's approach to the Constitution,” said Republican Senator Bob Dole of Kansas. “That approach is based on ‘judicial restraint,' the principle that judges are supposed to interpret the law and not make it. Now, Judge Bork did not invent this concept,” Dole continued. “It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes.”
3

Bork's Democratic opponents, meanwhile, followed Kennedy's example and zeroed in on the ways Bork's jurisprudence threatened to overturn landmark liberal rulings and upset the current political balance. “As I understand what you have said in the last 30 minutes,” said Senator Joseph Biden, a Democrat from Delaware and chairman
of the Senate Judiciary Committee, who was then questioning Bork about whether or not the Constitution secured a right to privacy, “a State legislative body, a government, can, if it so chose, pass a law saying married couples cannot use birth control devices.”
4

Bork would repeatedly object to that characterization of his views, but there was no denying that Biden had a point. If the Supreme Court had followed Bork's restrained approach to legislative determinations in the 1965 case of
Griswold v. Connecticut,
it never would have invalidated that state's ban on the use of birth control devices by married couples. Similarly, if the Court had followed Bork's deferential approach eight years later in
Roe v. Wade,
Texas's anti-abortion restriction would still be on the books and women would not enjoy a nationally protected right to terminate a pregnancy.

But Bork's supporters on the other side of the aisle also had a point. Reagan and Dole were right: Bork
was
a principled advocate of judicial minimalism. Bork not only opposed what he saw as the Court's liberal activism in
Griswold
and
Roe,
he also rejected what he saw as the conservative activism of
Lochner v. New York,
the same case denounced by Progressive luminaries such as Holmes, Felix Frankfurter, and Theodore Roosevelt. Indeed, during his confirmation hearings, Bork took pains to remind his Democratic interrogators “that there was a time when the word ‘liberty' in the Fourteenth Amendment was used by judges to strike down social reform legislation.” Those conservative and libertarian judges, Bork argued, “were wrong because they were using a concept to reach results they liked, and the concept did not confine them, and they should not have been using that concept.”
5

It was a sentiment worthy of Justice Holmes himself. Yet not only did Bork's ode to legal Progressivism fail to win him any additional Democratic supporters, it almost certainly helped doom his already troubled nomination, which eventually went down to defeat in the Senate by a vote of 58–42. That's because American liberals had long
ago abandoned the sort of all-encompassing judicial deference espoused by Holmes and his followers. Instead, modern progressives like Kennedy and Biden took their cues from a new breed of liberal jurist, best represented by figures such as Chief Justice Earl Warren and Associate Justice William O. Douglas. Those justices had led the mid-twentieth-century Supreme Court through what has been dubbed a “rights revolution,” a busy stretch during which state actions were routinely overturned in the name of voting rights, privacy rights, abortion rights, the rights of criminal defendants, and many other rights besides. Put differently, in the half century that fell between the presidencies of Franklin Roosevelt and Ronald Reagan, the American left had learned to stop worrying and love judicial activism.

Footnote Four

The story of this sweeping liberal transformation begins in the most humble of places: a footnote. In 1938, hot on the heels of its famous about-face on the question of liberty of contract versus judicial restraint, the Supreme Court considered the constitutionality of a federal statute charged with depriving entrepreneurs of their economic freedom. At issue in
United States v. Carolene Products Co.
was a federal law forbidding the interstate shipment of so-called filled milk, which is basically a milk product made with oil rather than milk fat. Because filled milk looks like normal milk or cream while containing a cheaper non-dairy ingredient, the dairy industry viewed the product as a competitor and lobbied successfully for the restriction. Adopting a deferential posture, the Supreme Court concluded that Congress must have had its reasons for passing the Filled Milk Act, and therefore voted to sustain the ban over the objections of the Carolene Products Company, which had hoped to earn a profit by shipping the foodstuff across state lines for sale. When it came to “regulatory legislation affecting ordinary
commercial transactions,” the Court declared in its
Carolene Products
ruling, “the existence of facts supporting the legislative judgment is to be presumed.”
6
In other words, judges should give lawmakers the benefit of the doubt and vote to uphold the overwhelming preponderance of economic regulations.

Lawyers today know this approach as the “rational-basis test,” and, in the words of
Black's Law Dictionary,
it “is the most deferential of the standards of review that courts use in due-process and equal-protection analysis.”
7
Essentially, the rational-basis test requires judges to respect the wisdom of the elected branches and to examine the details of a law only if it seems to lack any conceivable connection to a legitimate government interest. Thus in
Carolene Products,
because Congress did have a legitimate interest in monitoring the interstate milk market, and because the regulation in question did not appear to be a completely nonsensical way to advance that interest, the Supreme Court made no attempt to determine whether or not Congress had any verifiable scientific evidence for declaring filled milk to be “an adulterated article of food, injurious to the public health.”
8
Had the justices looked further, they might have discovered that filled milk was a perfectly safe (and affordable) alternative to whole-fat milk, as countless consumers could have attested then and could still attest now.

Armed with the rational-basis test, the Supreme Court proceeded to grant overwhelming deference to a range of regulatory measures. In the 1948 case of
Goesaert v. Cleary,
for example, the Court upheld a Michigan law forbidding women from working as bartenders unless they happened to be “the wife or daughter of the male owner” of a licensed establishment. “We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives,” declared the opinion of Justice Felix Frankfurter. “Since the line they have drawn is not without a basis in reason,” he continued, “we cannot give ear to the suggestion that the real impulse behind
this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.”
9

Similarly, in the 1954 case of
Williamson v. Lee Optical Inc.,
the Court unanimously upheld an Oklahoma law requiring a prescription from an ophthalmologist or optometrist before an optician was allowed to fit or duplicate eyeglass lenses. Among other results, the law served to ban the longstanding practice of getting an optician to fit old lenses into new frames without a prescription, thereby costing the consumer extra money by mandating a pointless trip to the eye doctor. “The Oklahoma law may exact a needless, wasteful requirement in many cases,” admitted Justice William O. Douglas in his opinion for the Court. “But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”
10
Furthermore, the ruling added, in what would become shorthand for the Court's new deferential regime, “It is enough that there is an evil at hand for correction, and that it
might
be thought that the particular legislative measure was a rational way to correct it.”
11

Nine years later, in the case of
Ferguson v. Skrupa,
the Court relied in part on
Lee Optical
to uphold a state law criminalizing “the business of debt adjustment,” essentially a middleman-type position that acts as a paid broker between debtors and collectors. “The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas,” declared the majority opinion of Justice Hugo Black, a former New Deal senator from Alabama and Supreme Court appointee of Franklin Roosevelt, who also tacked on this quote from Justice Holmes for good measure: “A state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State.”
12
Ten years later, in the case of
Lehnhausen v. Lake Shore Auto Parts Co.,
the Court would tip the scales even further in favor of the government, holding that in all
cases dealing with economic regulations, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might conceivably support it.”
13

Yet at the same time that the Supreme Court was committing itself to this near-total submission to lawmakers on the economic front, the justices were testing the bounds of greater judicial action in other realms. As justification for this bifurcated approach, they pointed back to the fine print in the 1938
Carolene Products
case. In Footnote Four of that opinion, Justice Harlan Fiske Stone explained that while the courts must now presume all economic regulations to be constitutional, “more exacting judicial scrutiny” would still be appropriate in other types of cases. For example, Stone agued, the Court should not automatically defer to a law that appeared to run afoul of “a specific prohibition of the Constitution, such as those of the first ten amendments.” In addition, Stone wrote, judicial deference would be equally inappropriate when the law at issue appeared to impact the right to vote or to otherwise impede the “political processes” normally employed by citizens to vindicate their rights. Finally, Stone argued, “prejudice against discrete and insular minorities” may also require a “more searching judicial inquiry.”
14
According to Footnote Four, in other words, the Supreme Court need not after all commit itself to the practice of judicial restraint in all cases.

To the members of the burgeoning civil rights movement, the call for enhanced judicial scrutiny on behalf of voting rights and “discrete and insular minorities” sounded exactly right. Under the leadership of talented lawyers such as future Supreme Court Justice Thurgood Marshall, the NAACP Legal Defense Fund was then asking the courts to breathe real life into the Fourteenth Amendment by securing equal treatment under the law for African Americans throughout the realm of Jim Crow. That strategy famously paid off with the Supreme Court's historic 1954 ruling in
Brown v. Board of Education of Topeka, Kansas,
one of the greatest legal victories for racial equality since libertarian NAACP president Moorfield Storey won
Buchanan v. Warley
back in 1917. Under
Brown,
racial segregation in public schools was ruled to be “inherently unequal”
15
and therefore unconstitutional under the Equal Protection Clause.

Brown,
and the line of desegregation cases that followed it, inspired a harsh backlash throughout the country, with segregationists and their allies denouncing the “judicial tyranny” of the Supreme Court and calling for the impeachment of Chief Justice Earl Warren, who authored the unanimous majority opinion. But
Brown
also had its critics on the left, a fact that is sometimes forgotten today. Foremost among them was Judge Learned Hand, recently retired from his position as chief judge of the U.S. Court of Appeals for the Second Circuit. Considered by many legal observers to be the greatest judge never to sit on the Supreme Court, Hand was an undisputed icon of the Progressive movement, a revered jurist and scholar whose career stretched back to the great battles over the role of the courts that raged during the
Lochner
era.