“Robert Bork’s America”
On July 1, 1987, President Ronald Reagan 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.
Born in Albany, New York, in 1872, Hand studied law at Harvard and went on to serve as a key adviser to Theodore Roosevelt’s 1912 Progressive Party campaign for the presidency. One year later, Hand himself appeared on the Progressive ticket as a candidate for the chief judgeship of New York’s highest court. In 1914, he joined Herbert Croly in founding The New Republic, where he regularly contributed articles and editorials advocating Progressive political and legal theories until his appointment to the Second Circuit in 1924, where he would spend the next three decades. When he died in 1961, the New York Times responded with a front-page obituary describing him as “the greatest jurist of his time.”16
In February 1958, at the age of eighty-seven, Hand was invited back to Harvard to deliver the celebrated Oliver Wendell Holmes Lecture, an annual event featuring a distinguished legal speaker. In his remarks, delivered over three nights and later published as a short book titled The Bill of Rights, Hand’s theme was the fundamental illegitimacy of judicial review and what he saw as the troubling rise of liberal judicial activism by the current Supreme Court, including its recent decision in Brown v. Board of Education. He began with a critique of the “patent usurpation” whereby the Supreme Court had transformed itself into “a third legislative chamber.”17 As he explained, such activism was inappropriate no matter what value was at stake. “I can see no more persuasive reason for supposing that a legislature is a priori less qualified to choose between ‘personal’ than between economic rights,”18 he announced. As for the constitutional protections spelled out in the Bill of Rights and the Fourteenth Amendment, “we may read them as admonitory or hortatory, not definite enough to be guides on concrete questions.”19 As Hand saw it, the individualistic language of the Constitution was no license for judges to go meddling around with the democratic process.
Turning next to Brown, Hand argued that the problem with the Supreme Court’s ruling was that the justices had substituted their own values for those of the Kansas authorities. That, he said, was precisely what conservative justices had previously done in order to strike down the economic reforms they disapproved of during the Progressive and New Deal periods. Brown, he informed his increasingly disquieted audience, was guilty of the same judicial sins that had marred Lochner and other liberty of contract cases, and must therefore be rejected as such. “There can be no doubt,” he declared, “that the old doctrine seems to have been reasserted.”
Indeed, Hand went on, in the aftermath of Brown and other aggressive liberal rulings by the Warren Court, “I do not know what the doctrine is as to the scope of these clauses,” meaning the Due Process and Equal Protection Clauses of the Fourteenth Amendment. “I cannot frame any definition that will explain when the Court will assume the role of a third legislative chamber and when it will limit its authority.”20 It was judicial power run amok.
To conclude his lecture, Hand made one final, personal plea for the Court to adopt the method of judicial deference he had been championing for nearly half a century. “For myself,” he said, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”21
In time, those eloquent words would come to be celebrated as one of the most powerful statements ever made in favor of judicial restraint. But that eloquence did little to make the bitter pill of Hand’s message any easier to swallow in 1958, especially for the many young liberals in his audience who had cheered Brown as among the Supreme Court’s finest rulings. As Hand biographer Gerald Gunther later put it, “Warren Court admirers could dismiss the most vocal critics of the Court as extremists; yet here was the nation’s most highly regarded judge . . . apparently joining the Court’s enemies.”22
Into the Thicket
Nor would Hand be the only Progressive veteran to line up against the new liberal order. Felix Frankfurter, the influential Harvard professor, protégé of Oliver Wendell Holmes, and New Deal adviser to President Franklin Roosevelt, had been rewarded for his accomplishments when FDR elevated him to the Supreme Court in 1939. But then something unexpected happened. As his colleagues began to adopt the Footnote Four framework and apply heightened judicial scrutiny in cases dealing with civil liberties and voting rights, Frankfurter, for the first time in his professional life, found himself increasingly out of step with the liberal consensus. By the time he retired in 1962, many young reformers had come to regard Frankfurter as one of the Supreme Court’s leading reactionaries, and not as any sort of progressive at all.
Frankfurter got his first taste of the Supreme Court’s new direction in a pair of cases dealing with the question of whether public schools may require their students to salute the American flag as part of a daily exercise that included the Pledge of Allegiance. The first of those cases originated in Pennsylvania, where two children, aged ten and twelve, both practicing Jehovah’s Witnesses, had refused to salute the flag and were therefore expelled. Their father challenged the law on their behalf, arguing that it interfered with the children’s religious liberty.
Frankfurter saw the matter quite differently. In fact, he thought it was an open-and-shut victory for the local school board. “The court-room is not the arena for debating issues of educational policy,” he declared for the majority in the 1940 case of Minersville School District v. Gobitis. One of the main purposes of public education, Frankfurter said, was to instill notions of patriotism and democracy in young Americans. And it was simply beyond the legitimate purview of the federal courts to second-guess local determinations made in the service of that basic objective. To rule otherwise, he maintained, “would in effect make us the school board for the country.”23 If a family of Jehovah’s Witnesses (or any other sect) wanted to secure greater accommodations for their religious beliefs, they should do so “in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena.”24
Yet just three years later, thanks in part to a change in the Court’s composition, Frankfurter found himself on the losing side of a nearly identical dispute in the case of West Virginia State Board of Education v. Barnette. Once again, some young Jehovah’s Witnesses had refused to participate in their public school’s mandatory flag salute ceremony on religious grounds. But this time the Supreme Court ruled in the students’ favor, holding that the state government had trespassed on their constitutional rights. “To sustain the compulsory flag salute,” observed the majority opinion of Justice Robert Jackson, “we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.”25
Frankfurter was furious about being overturned, and he made no effort to hide it in his dissent. “Responsibility for legislation lies with legislatures, answerable as they are directly to the people,” he announced. “This Court’s only and very narrow function is to determine whether, within the broad grant of authority vested in legislatures, they have exercised a judgment for which reasonable justification can be offered.”26 Pointing to his own identity as a Jewish American, Frankfurter tartly noted that while he knew a thing or two about the plight of religious minorities, that knowledge still gave him no license as a judge to stamp his own feelings on the Constitution. “As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more, and not less, important,” he warned his colleagues, “lest we unwarrantably enter social and political domains wholly outside our concern.”27
Frankfurter would repeat that same warning with even greater volume two decades later in what turned out to be his final opinion as a justice, a long and bitter dissent from the landmark 1962 voting rights decision in Baker v. Carr. Hailed by Chief Justice Earl Warren as “the most vital decision”28 handed down during his tenure on the bench, Baker dealt with the thorny issue of how a state government apportions its legislative districts in the wake of a census. The case originated in Tennessee, where the plaintiffs charged Secretary of State Joseph Cordell Carr with stacking the deck in favor of rural voters at the expense of the state’s growing urban population by failing to properly redraw the boundary lines for the ninety-five districts that comprised the Tennessee General Assembly. According to the challengers, the state government was effectively denying urban residents a fair share of political power and thereby violating the basic principle that the Supreme Court would ultimately recognize as “one person, one vote.” For its part, Tennessee argued that the federal courts lacked jurisdiction to hear the case, and added that the issue of legislative apportionment was a “political question” that the Supreme Court had no business trying to solve.
Writing for a six-to-two majority, Justice William Brennan ruled against the state. While he did not pass judgment on the constitutionality of Tennessee’s current apportionment scheme, Brennan made it clear that the challengers had every right to bring suit and that the federal courts were within their rights to settle the matter in a future case. “The complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision,” he held. “The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”29 Two years later, in Reynolds v. Sims, Chief Justice Warren went further and nullified Alabama’s lopsided districting plan, ruling that representation in a state legislature must closely track the state’s actual population. “Legislators represent people, not trees or acres,”30 he declared.
In a previous redistricting case, Felix Frankfurter had urged the Supreme Court to avoid the matter entirely as a basic act of judicial restraint. “Courts ought not to enter this political thicket,”31 he famously wrote. Finding himself on the losing side of Baker, Frankfurter doubled down on that deferential position. The Court’s ruling, he declared in dissent, was “a massive repudiation of the experience of our whole past” brought about by the assertion of a “destructively novel judicial power.”32 The Court had simply gone too far. “There is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power,”33 he argued. Yet thanks to the majority’s holding, the federal courts were now empowered “to devise what should constitute the proper composition of the legislatures of the fifty States,”34 a result he found both offensive and unworkable. “In a democratic society like ours,” Frankfurter maintained, “relief must come through an aroused popular conscience that sears the conscience of the people’s representatives,”35 not through the courts.
To say the least, it was not an opinion destined to win Frankfurter any new fans on the American left. Indeed, as one historian recently put it, “With time, it came to seem impossible that a justice who opposed judicial enforcement of voting rights could be considered liberal.”36 The same thing might be said about the West Virginia flag-salute case, now considered a touchstone in the advancement of civil liberties. Yet there stood Frankfurter, one of the last lions of the Progressive legal movement, attacking his liberal colleagues for their judicial activism on both counts.
What changed? Certainly not Frankfurter—he remained faithful to the majoritarian jurisprudence of his youth. Back in 1924, outraged over the use of the Fourteenth Amendment to overturn state regulations, he had called for the repeal of the Due Process Clause in an unsigned editorial written for The New Republic. Now, in the twilight of Jim Crow, Frankfurter was still urging the federal courts to butt out of state affairs and let local citizens and their elected representatives chart their own political futures. He saw Footnote Four as an escape hatch, one that let federal judges roam free once more to strike down state and federal legislation.
“Penumbras, Formed by Emanations”
The growing tension between Progressive restraint and liberal activism finally exploded when the Supreme Court grappled with the hot-button issue of reproductive privacy. In Connecticut, under a statute dating back to 1879, it was a crime to use “any drug, medical article or instrument for the purpose of preventing conception,”37 as well as to assist, counsel, or otherwise aid any person in the use of such devices. Birth-control advocates had previously tried to get the Supreme Court to consider the merits of the contraceptive ban on two separate occasions, and had been rebuffed both times. First, in the 1943 case of Tileston v. Ullman, the Court ruled that the challenger lacked the requisite legal standing to bring suit. Then, in 1961’s Poe v. Ullman, the Court said that because no one had actually been prosecuted for violating the law, the case was not yet “ripe” enough for adjudication.
But all that changed with the 1965 case of Griswold v. Connecticut. Two agents of the state’s Planned Parenthood League, one of whom was a doctor, had been duly charged with dispensing birth-control information and devices to married couples. The Supreme Court saw its opportunity to rule on the matter and tackled the case head-on.
The result was a fractured ruling that continues to spark debate. At the heart of the case was a deceptively simple question: Does the Constitution protect a right to privacy that covers the freedom of married couples to use birth control? A majority of the Court held that it did, but then quickly divided over precisely how the Constitution managed to do it. Writing for a five-justice majority, Justice William O. Douglas argued that while the right to privacy is not specifically enumerated in the text of the document, various textual provisions do nonetheless protect certain aspects of privacy, such as the Fourth Amendment’s guarantee against unreasonable searches and seizures and the Fifth Amendment’s protection against self-incrimination. Furthermore, Douglas argued, those “specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations from those guarantees that help give them life and substance.”38 Taken together, the “penumbras” and “emanations” of these “fundamental constitutional guarantees” create a distinct “zone of privacy”39 that is itself a constitutional right worthy of judicial protection. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” he asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”40
In a separate concurrence, Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, agreed that the law “unconstitutionally intrudes upon the right of marital privacy,” but instead rested the case more squarely on the language of the Ninth Amendment, which holds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” As Goldberg saw it, privacy was clearly among those unenumerated rights retained by the married people of Connecticut. “Although the Constitution does not speak in so many words of the right of privacy in marriage,” he wrote, “I cannot believe that it offers these fundamental rights no protection.”41
Meanwhile, two other justices, John M. Harlan and Byron White, each filed their own separate concurring opinions that rejected the penumbras approach entirely and ruled against the law solely under the Due Process Clause of the Fourteenth Amendment. In short, the Court’s liberal majority very much wanted to recognize a constitutional right to privacy, but the justices could not reach any sort of broad agreement over the proper method for doing so.
Why the disarray? Consider again the central proposition of Footnote Four from the 1938 Carolene Products decision. It said that the Supreme Court may only engage in “exacting judicial scrutiny” when the law under review appears to violate a specific provision of the Constitution, interfere with the political process, or discriminate against “discrete and insular minorities.” Simply put, Connecticut’s intrusion on marital privacy failed42 to clearly satisfy any one of those three separate tests, leaving the justices scrambling for a fix.
Douglas in particular struggled to meet the requirements of Footnote Four. Keep in mind that Carolene Products was written in large part as a reaction to cases such as Lochner v. New York, which struck down a maximum working hours law for bakery employees, and Adkins v. Children’s Hospital, which struck down a minimum wage law for women. In each of those cases, the Supreme Court had nullified an economic regulation for violating the unenumerated right to liberty of contract, a right the Court first located in the Fourteenth Amendment’s guarantee that no person be deprived of life, liberty, or property without due process of law. Yet as Chief Justice Charles Evans Hughes had declared in West Coast Hotel Co. v. Parrish, the 1937 case that overruled Adkins and effectively killed Lochner, “The Constitution does not speak of freedom of contract,”43 and therefore the Supreme Court would neither recognize it nor protect it. Well, the Constitution does not speak of privacy either, and according to both Parrish and Footnote Four, that textual absence was a big problem for Douglas and his Griswold opinion.
Nor did Douglas do himself any favors when it came to the crafting of his legal arguments. On the one hand, he began his opinion by repudiating the liberty of contract line of cases. “Overtones of some arguments suggest that Lochner v. New York should be our guide. But we decline that invitation,”44 he wrote. Yet just two paragraphs later, Douglas proceeded to follow Lochner anyway when he cited two precedents from the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, in which the Supreme Court relied directly on Lochner’s expansive protection of liberty in order to reach its respective holdings. In Meyer, for instance, Justice James C. McReynolds nullified Nebraska’s ban on teaching young students in a foreign language on the grounds that it interfered with the economic liberty of a Bible teacher who worked at a private school. “Without doubt,” McReynolds wrote, citing Lochner, the liberty protected by the Fourteenth Amendment “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”45 Two years later, in Pierce, McReynolds extended that libertarian principle to overturn Oregon’s Compulsory Education Act, which had forbidden parents from educating their children in private schools. “The child is not the mere creature of the state,”46 McReynolds declared. Whether Justice Douglas wanted to admit it or not, Lochner’s DNA is plainly evident in his Griswold opinion.
“I Like My Privacy As Well as the Next One”
For Justice Hugo Black, enough was enough. Griswold was a Lochner-ian ruling, and Black had no qualms about denouncing it as such. An ardent New Dealer when he joined the Supreme Court in 1938, the former Alabama senator was outraged by the reappearance of those old legal arguments on behalf of new unwritten rights. “I like my privacy as well as the next one,” Black declared in his Griswold dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”47
That remark captures Black’s entire jurisprudence in a nutshell. Nobody’s idea of a judicial pacifist, Black would only countenance judicial review in those cases where he thought the law at issue conflicted with an express guarantee of the Constitution. “When judges have a constitutional question in a case before them, and the public interest calls for its decision,” he would announce, “refusal to carry out their duty to decide would not, I think, be the exercise of an enviable ‘self-restraint.’ Instead I would consider it to be an evasion of responsibility.”48
In fact, when it came to the protections spelled out in the Bill of Rights, Black took a nearly absolutist position in favor of judicial intervention. In his famous 1947 dissent in Adamson v. California, for instance, Black argued that not only should the Fifth Amendment’s safeguard against self-incrimination be strongly defended against the actions of a state government, the entire Bill of Rights should be applied to the states and aggressively enforced by the federal courts. As for the First Amendment, Black took an even harder stance. “Courts must never allow this protection to be diluted or weakened in any way,” he maintained. The First Amendment means exactly what it says, and that meaning must be protected by the courts, “without deviation, without exception, without any ifs, buts, or whereases.”49
But when it came to the judicial enforcement of unenumerated rights, Black drew a bright line in the opposite direction and simply refused to cross it. “I cannot accept a due process clause interpretation which permits life-appointed judges to write their own economic and political views into our Constitution,”50 he argued, thereby linking the Court’s ruling in Griswold to its previous decision in Lochner. Indeed, Black’s Griswold dissent took direct aim at Douglas’s use of the libertarian precedents set in Meyer and Pierce, “both decided in opinions by Mr. Justice McReynolds,” Black noted, “which elaborated the same natural law due process philosophy found in Lochner v. New York.” That approach, he told his colleagues, “is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.”51
Much like Learned Hand and Felix Frankfurter, Hugo Black never forgot his outrage over the Supreme Court’s earlier use of the Fourteenth Amendment to attack Progressive and New Deal era legislation. “There is a tendency now among some,” Black observed in 1968, “to look to the judiciary to make all the major policy decisions of our society under the guise of determining constitutionality. . . . To the people who have such faith in our nine justices, I say that I have known a different court from the one today. What has occurred may occur again.”52
Unhappily for these old-line Progressives, however, the call for judicial deference fell on increasingly deaf liberal ears as the twentieth century entered its seventh decade. But there was at least one person paying careful attention to what they had to say. At Yale Law School, a young professor named Robert Bork began dusting off the Progressive case for judicial restraint and refurbishing it into an intellectual weapon he might wield on behalf of conservative legal goals.
Majorities Rule
Here’s a surprising fact about Robert Bork: The famous arch-conservative initially welcomed the Supreme Court’s decision legalizing birth control in Griswold v. Connecticut. Born in Pittsburgh, Pennsylvania, in 1927, Bork received an undergraduate education at the University of Chicago and then stuck around on campus to attend law school, graduating with a law degree in 1953. At that time, the University of Chicago was first solidifying its reputation as a bastion of free-market thought, thanks in large part to the work of economics professor and future Nobel Prize winner Milton Friedman, who championed minimal government interference in all aspects of economic (and private) life and famously blamed federal policies rather than capitalist excesses for causing the Great Depression.53 Bork’s encounter with those ideas initially made him into something of a libertarian, and he began applying the insights of free-market economics to the field of antitrust law when he took up his professorship at Yale Law School in 1962.
The academic world of Yale introduced a decisive new influence on Bork’s thinking, that of his law school colleague Alexander Bickel. A former law clerk to Justice Felix Frankfurter, Bickel was a brilliant and persuasive advocate of Progressive-style judicial restraint. In his 1962 book The Least Dangerous Branch, for instance, Bickel described judicial review as a “counter-majoritarian force in our system” and therefore a “deviant institution” that required stringent justification before use. “When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive,” he wrote, “it thwarts the will of representatives of the actual people of the here and now.”54 As a result, Bickel advocated a very modest role for the courts, urging judges to practice “the passive virtues”55 and to avoid disruptive confrontations with the elected branches of government whenever it was remotely possible to do so.
“I taught a seminar with Professor Bickel starting in about 1963 or 1964,” Bork would later recall. “We taught a seminar called Constitutional Theory. I was then all in favor of Griswold v. Connecticut.” As Bork then saw it, if the courts would only ground their reasoning in the principles of individual autonomy that served as the foundation for the Bill of Rights, new rights such as privacy might be properly recognized and defended by the judiciary. “I did that for about 6 or 7 years,” Bork remembered, “and Bickel fought me every step of the way; said it was not possible. At the end of 6 or 7 years, I decided he was right.”56 That decision transformed Bork’s career and changed the future of American law.
Bork went public with his case against Griswold in a 1971 article for the Indiana Law Review titled “Neutral Principles and Some First Amendment Problems.” It remains one of the most influential and frequently cited law review articles to appear in the last four decades. It also set the tone for all subsequent conservative attacks on liberal judicial activism. The “proper role of the Supreme Court under the Constitution” is the central question of American jurisprudence, Bork observed. “It arises when any court either exercises or declines to exercise the power to invalidate any act of another branch of government. The Supreme Court is a major power center, and we must ask when its power should be used and when it should be withheld.”57
In Bork’s view, the Court’s power plainly should have been withheld in Griswold. “Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups,”58 he wrote, echoing Oliver Wendell Holmes’s observation that all laws are “necessarily a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”59 But unless the Constitution provides clear and specific guidance on how to settle each particular dispute, Bork went on, “courts must accept any value choice the legislature makes.” To hold otherwise would be to place the subjective views of the judge on a higher plane than the wishes of the people as expressed via their elected representatives. “The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question,” Bork maintained. “The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.”60
Taking another page from the Progressive playbook, Bork faulted the Supreme Court for reading the tea leaves of the Due Process Clause in the hopes of divining whether or not a particular species of liberty deserves special protection from the edicts of the majority. What makes “sexual gratification more worthy than economic gratification?” he asked. Absent a clear answer drawn from an unequivocal constitutional provision, “the only course for a principled Court is to let the majority have its way.”61
Bork also connected the dots between Lochner and Griswold, arguing that both cases relied on the same flawed reading of the Due Process Clause as a protector of substantive liberty against the will of the majority. “Substantive due process, revived by the Griswold case, is and always has been an improper doctrine,” Bork declared. “This means that Griswold’s antecedents were also wrongly decided,” he went on, pointing not only to Lochner, but also to Meyer, where the Court voided a state ban on teaching foreign languages to children, and Pierce, where the Court overturned a state law prohibiting private schools. “With some of these cases I am in political agreement,” Bork added, alluding perhaps to his earlier interest in libertarianism, “but there is no justification for the Court’s methods.” Quoting directly from the majority opinion in Lochner, in a passage in which Justice Peckham had asked, “Are we all . . . at the mercy of legislative majorities?” Bork was quick to supply a response: “The correct answer, where the Constitution does not speak, must be ‘yes.’”62
“An Extreme Individualistic Philosophy”
While Griswold remains controversial, that dispute is nothing compared to the furor still surrounding the Supreme Court’s 1973 opinion in Roe v. Wade. In Roe, a seven-to-two majority extended the right of privacy first recognized in Griswold to cover a woman’s decision to terminate her pregnancy. Four decades later, the battle over that decision continues to rage, with no end in sight.
The case originated in Texas, where a state law criminalized all abortions except in those instances where the life of the mother was at risk. In his opinion for the Court, Justice Harry Blackmun struck down that prohibition and replaced it with a tripartite system for determining the permissible scope of state regulation. In effect, Roe held that a woman may have an abortion for any reason during the first three months of her pregnancy. During the next three months, up to the point of fetal “viability,” the state legislature may impose some additional regulations so long as they “are reasonably related to maternal health.”63 Finally, during the final trimester of pregnancy, the state may regulate “and even proscribe” abortions, except when “the preservation of the life or health of the mother”64 is at stake. “This right of privacy,” Blackmun wrote, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it to be, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”65
Writing in dissent, Justice William Rehnquist, who would later serve as chief justice, chastised the majority for distorting the Constitution in order to advance its liberal agenda. “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word,” Rehnquist observed. The real question was whether or not “the claim of a person to be free from unwanted state regulation of consensual transactions”66 counts as a form of protected liberty under the Fourteenth Amendment. If it does, Rehnquist continued, then the majority’s holding is “closely attuned to the majority opinion of Mr. Justice Peckham” in the Lochner case, where a substantive interpretation of the Due Process Clause was similarly deployed on behalf of an unenumerated individual right. The Court’s approach in Roe, he concluded, “partakes more of judicial legislation”67 than it does of principled judicial review.
Robert Bork agreed wholeheartedly. Roe, he declared, was “the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century,” and therefore “should be overturned”68 as soon as possible. At least in Griswold, “spurious as it was,” he wrote, the Supreme Court “seemed to confine ‘the right of privacy’ to areas of life that all Americans would agree should remain private,” such as the marital bedroom. Roe made no such effort to cabin the impact of its reasoning. Operating under the spell of “an extreme individualistic philosophy,” Bork wrote, the Supreme Court was now asserting “that society, acting through government, had very little interest in such matters.”69 As Bork saw it, society, acting through government, had every interest in such matters of morality, and if any member of the public happened to disagree with the current crop of legislation dealing with sexual and reproductive matters, the only recourse was to vote his or her particular moral preferences into law at the next election. As for the judiciary, its only role was to interpret the laws made by the majority, not to make any new laws of its own devising. “Judges who vigorously deny elected representatives the right to base law on morality, simultaneously claim for themselves the right to create constitutional law on the basis of morality, their morality,”70 he observed.
Justice Oliver Wendell Holmes could not have said it better himself.