TDR 25: Ingraham on Bork
By Laura Ingraham | Tuesday, November 22, 2005
Editors' Note: As a part of the continuing series of retrospectives in celebration of the Review's twenty-fifth anniversary, the following is an interview Laura Ingraham '85 conducted with Judge Robert Bork in 1984, prior to his 1987 nomination to the Supreme Court.
The Dartmouth Review: Groups that are anti-abortion are often accused of imposing their morality on people. Now you have argued that in Roe v. Wade what we had was a case of a small group of judges imposing their morality on the whole nation.
Robert Bork: Yes, I said that. But I want to caution you at the outset that now that I am a judge, I don't like to keep repeating those things that I wrote earlier, although of course I don't disagree with them.
TDR: What's wrong with a judge imposing his morality? Isn't that what judges are for?
RB: No. A judge is supposed to get his morality from the Constitution.
TDR: What if the Constitution does not speak clearly?
RB: If the Constitution does not speak clearly enough, then a judge ought to let the democratic process resolve an issue.
TDR: Why do you feel that judicial activism permeates the legal community?
RB: I think that is an enormously complicated question. Partly it has to do with ideas that have become dominant in the universities. Partly it has to do with Congress not making definite choices and leaving it up to the courts to decide. But in most cases, I believe, it is not a case of Congress passing the buck, but of the court taking a constitutional clause and extending its meaning.
TDR: Who are the dominant theorists of the judicial activism school?
RB: They are everywhere in the universities, and the law school literature is full of such thinking. Many of these people deny that they are judicial activists, but they are. John Ely and Ronald Dworkin come to mind as leading theorists.
TDR: Do you think there was any basis for the privacy right articulated by Justice Blackmun in Roe v. Wade?
RB: Well, I'm a judge now, and I don't want to be criticizing the Supreme Court. But I have said in the past that there was no constitutional basis for it.
TDR: When reading the Constitution, should judges look for the actual meaning of the text, or should they try and discern the intention of the Founding Fathers, or should they try and apply stated principles to modern realities?
RB: There are a lot of things you have just brought up. I think judges ought to look to the intention of the people who wrote the Constitution. Should judges apply principles to modern reality? In one sense, yes. Obviously there were no radio and television when the Constitution was drawn up. The Founding Fathers did not foresee electronic surveillance, and so forth. However, their intention to preserve certain kinds of freedoms and values can easily be applied to new technologies. On the other hand I don't think it is right for judges to make up new values.
TDR: So you don't see the Constitution as "evolving," as some legal theorists put it?
RB: Not with respect to values, no.
TDR: Now the judicial restraint you espouse seems to place a great deal of faith in the democratic process, the ability of the people to legislate justice.
RB: The Founders sure had faith in the people.
TDR: How would you respond to de Tocqueville's criticisms of democracy, the "tyranny of the majority?"
RB: I have my own thoughts about de Tocqueville. But you see, I don't think that is a question for a judge to answer. Maybe the majority will do things that make you and me very unhappy, but that is the meaning of democracy. Unless the Constitution says that the majority of the people don't have power in this area or that, then they are free to be foolish. Maybe it makes some judges unhappy, but if the Constitution doesn't restrict the people's power, I don't think the judge has much to say about it.
TDR: So the judge is only entitled to protect the rights of the minority so far as they are clearly articulated in existing laws?
RB: That's right.
TDR: Let's apply these principles to the abortion case. If Roe v. Wade is misguided, and we leave it up to the states to regulate or permit abortion, then some states would allow it, others would prohibit it. But pro-life advocates argue that this is wrong. They regard abortion as akin to murder, and murder is not optional in any state.
RB: All that is very good. But you see, the principle for a judge is simple: what does the Constitution say? That is the question: Does the Constitution speak to the issue of abortion or not? This has nothing to do with whether the judge agrees with the pro-life or the pro-choice groups. He may agree with either one. But as a judge he is required to consult the Constitution.
TDR: Well, to face the pro-life argument head on, can states legalize murder?
RB: I must say, I haven't thought about that question. It is not one that is likely to come up. I can imagine all kinds of Constitutional arguments against it.
TDR: Recently you were attacked in The Nation for your alleged belief that the First Amendment protects "purely political speech." Do you think that?
RB: No, I don't. I wrote a letter pointing out that the article cited to prove my thoughts is out of date as far as my current thinking is concerned.
TDR: Let's discuss a slogan that is frequently advanced, namely, that you can't legislate morality. Do you think it's possible to legislate morality? And what exactly do we mean by that phrase?
RB: Well, we mean simply that when people find something immoral they try and legislate against it. We do it all the time. Whether it changes public behavior depends on whether the law has real moral support behind it. We tried to legislate morality with Prohibition, and that didn't work at all. We tried it in the area of civil rights, and that has worked. So it's impossible to generalize about the success of moral legislation.
TDR: What do you think about busing?
RB: When I worked for the government, we tried to frame a statute which would have limited busing to put matters where they would have been had there been no violation.
TDR: You were accused in The Nation of "moral relativism" because you allegedly didn't think there are absolute truths which judges can discern. You want to leave most judgments to the people, and will enforce them no matter how they come out.
RB: I haven't seen The Nation article. I don't know what the hell this fellow is talking about. Very little legislation in America runs demonstrably contrary to morality. That is because legislation reflects the values of the American people. All I wrote in the article I think he is referring to is that I don't think a judge has any way of demonstrating that his morality is superior to that of the people. And if he doesn't, then he ought not to impose his morality. This seems to me to be a self-evident point. This is completely different from saying that there is no moral hierarchy, which I never said and do not believe.
TDR: What's your opinion of school prayer?
RB: Well, you have me in a bind on these issues. As a judge I am just not as free to speak out now as when I was a professor. Some time back I gave a lecture in a classroom and got headlines across the country saying, "Judge Denounces Supreme Court." I didn't denounce the Supreme Court. But since then I have been a bit cautious even about repeating what I said in public when I was a professor.
TDR: So you can't tell me what you think about Reagan?
RB: Oh my god. I am not supposed to be doing that. I am a judge. I can't make political statements.
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