The Honorable Robert H. Bork
Distinguished Fellow
Hudson Institute

Robert H. Bork - Employment- Distinguished Fellow at the Hudson Institute; lecturer at universities and associations nationwide; served on the U.S. Court of Appeals for the District of Columbia Circuit, 1982-1998; nominated by President Ronald Reagan to the Supreme Court in summer (1987); former solicitor general and acting attorney general of the United States; former partner in major law firm; taught constitutional law, Yale Law School; editor, A Country I Do Not Recognize: The Legal Assault On American Values. Works- Author, Slouching Towards Gomorrah: Modern Liberalism, American Decline, Coercing Virtue: The Worldwide Rule of Judges, and The Tempting of America: The Political Seduction of the Law; authored numerous magazine and law review articles; editor, one book. Special Memtion- Has made numerous television and radio appearances including C-SPAN, This Week with David Brinkley, CNN News, Good Morning America, Larry King Show, and other network and cable news programs; served in the United States Marine Corps. Education- B.A., University of Chicago; J.D., University of Chicago; holds several honorary degrees. Personal- Married to Mary Ellen; they live inMcLean, Virginia.

"Courting Disaster"

Gene mentioned something about my pessimism; I’m not pessimistic.  In fact, tonight I’m going to give a moderately upbeat talk.  I suggest that because of the rumor that I’m a pessimist I think due no doubt to a book I wrote once called Slouching Towards Gomorrah, which takes a rather bleak view of the trends in our culture.  In fact, my wife got sick of the whole thing and she had made me promise my next book would be optimistic.  So I told her I was going to write a book called Little Mary Sunshine.  Unfortunately, Kate O’Beirne of National Review was there and she said to my wife: “Don’t believe him.  The book is actually going to be called Little Mary Sunshine Gets Skin Cancer.”  But tonight I will be relentlessly optimistic, in moderation. 

Law is a crucial element of American culture and although the situation there is currently grim, there is for the first time in many years reason to hope.  One of the great achievements of Western nations has been the rule of law, which is now under attack from a determined and vicious enemy.  Even more ominous, however, is the attack from within the West that may have dangerous consequences that go far beyond the law.  

Now, there’s a paradox here.  The rule of law is in danger precisely because the nations of the West, including this country, are attempting to extend and solidify it.  They have adopted constitutions enforced by judges and are creating international rules and tribunals to protect human freedoms.  

The one thing these nations have not taken into account, and neither has the United States, was what judges would do with the powers given to them.  Judges throughout the West, not just the U.S., but in the UK and elsewhere, are becoming activists.  They are taking sides in a transnational culture war.  They elevate values peculiar to an Olympian intellectual class over the values of the general public.  Olympianism has been defined by Kenneth Minogue, a British political philosopher.  He said, “It’s the project of intellectual elite that believes it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement.”  

Olympianism burrowed like a parasite into the most powerful institution of the emerging knowledge economy: the universities.  Though Minogue did not say so, Olympians are a class to which judges belong and to which many of them respond.  They find the ideas of the law schools and the universities and the people they meet in Georgetown congenial and they don’t meet other people much.  Now, Olympians lose elections, but they win in court.  

There are obvious objections to this.  Activist judges steadily diminish the areas of life in which people govern themselves.  Moreover, judges almost invariably move the culture to the left, breaking down traditional moral codes and frustrating the efforts of the electorate to preserve those codes through statutes.  

And finally, judges of various Western nations, including the United States, are now conferring with and citing one another, producing what is less an American constitutional law and becoming more and more a transnational constitutional law.  I was on a panel with Ed Meese in which he suggested that we stop funding American judges to go overseas to conferences. I suggested we fund them to go to the conferences, but not to come back. This is the one time I got the better of him.

Our Supreme Court has begun to look to foreign decisions and even to unratified treaties, treaties the Senate has refused to ratify, and to UN resolutions as guides to interpreting the American Constitution.  I was amazed to discover that Kofi Annan was a founding father.  One justice even suggested the court should look for guidance to the Jamaican Privy Council, the Supreme Courts of India and of Zimbabwe.  Now, that may sound like Abbott and Costello meet James Madison. 

In a recent constitutional case before our court, foreign nationals and nongovernmental organizations filed over 400 amicus briefs.  They did not argue the meaning of the American Constitution, but argued the decision should be made according to international norms as they defined those norms.  Those norms are not the same as our Constitution.  In the death penalty case, a number of American diplomats filed an amicus brief arguing that our adherence to capital punishment made their jobs in foreign nations more difficult because those nations didn’t approve of capital punishment.  I suppose the court’s internationalism was to be expected.  As Minogue said, “Olympianism is a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights.  Olympians instruct mortals; they do not obey them.”

It is now being urged that there is an international law requiring abortion on demand and that people of nations which don’t allow it are in violation of international law.  Well, the danger of this development to American sovereignty is clear, but I want to make an additional and perhaps more controversial point is this: the attitudes being taught by our courts and other Western courts, the UK is out in front and the European Court of Human Rights at Strasbourg is behaving in the same way, are politically correct, or blue-state values.  They increase our vulnerability to the onslaught of the Islamic fascism.  

Now, I’ll try to state this very carefully because I do not want to be heard saying more than I mean.  In the first place, I do not mean that courts are primarily responsible for the attitudes under discussion.  Olympians in general are responsible, the intellectual class in general is responsible, and if we have time I’ll be delighted to define the intellectual class for you afterwards.  Activist courts, however, not only reflect Olympian values because they come from that class and respond to it, but they reinforce them and spread them and give them legitimacy because Americans are told falsely that these are the values that their revered Constitution requires.  

However, these values are so contrary to the commonsense of the American people that their constant trumpeting and enforcement leads to moral anarchy and lowered morale.  We are in the grip of a mood common to intellectuals that not only is America a highly imperfect society hardly worth shedding blood and treasure for, but that the individual is more important by far than the community and the community’s moral standards.  That is radical individualism and it is a plague throughout the Western nations.  

This view suffuses the Supreme Court opinions. People forget that they don’t just decide cases as reported in the press and elsewhere, they give moral instruction, and this view of radical individualism suffuses Supreme Court opinions.  Justice Harry Blackmun wrote that it is “a moral fact that a person belongs to himself and not to others, nor to society as whole.”  In a word, the individual has no obligations to anyone: wife, family, neighborhood, state, nation, or anything outside of his own skin.  Now, Justice Kennedy also spoke for unrestrained individualism.  As he twice put it in opinions, and both of these cases involved homosexual sodomy, the liberty the Constitution protects is, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  

Both justices thought that these watery sentiments created a constitutional right to homosexual sodomy and the court was clearly headed for the invention of a constitutional right to homosexual marriage.  Whether or not the angry reactions to the Massachusetts decision will deter them for a while, I don’t know, but if the same majority remains in power, they’ll be back.  But rampant individualism is not confined to the question of homosexuality.  It may be seen in the court’s throwing First Amendment protection around the vilest pornography, including computer-simulated child pornography, as free speech; in the court’s intense hostility to religion, which is particularly dangerous in the modern world, that hostility is; in the invention of a right to abortion, even partial birth abortion; in the steady whittling away of the death penalty with a view apparently of eventually abolishing it altogether; and more. 

Now, I want to stress that none of these developments, not one of these things the court has done that I just recited, not one of them is consistent with the Constitution, but every one of them is consistent with Olympian or intellectual class of values.  That court is consciously engaged in social engineering to remake America in the blue-state image was made clear by Justice Kennedy in a recent interview he gave to something called The Academy of Achievement.  They gave him an award.  Stating his conception of the role of the court, he said, “You know, in any given year, we may make more important decisions than the legislative branch does, precluding foreign affairs perhaps.”  That perhaps is ominous especially because the courts are going to take up various cases brought by terrorists.

But Kennedy went on: “You,” he said, “as a justice have the opportunity to shape the destiny of the country.  The framers wanted you to shape the destiny of the country.  They did not want to frame it for you.”  I don’t know what the point was of calling them framers or why they bothered writing a Constitution.  They could have just have said – junked the Bill of Rights and said, “The Supreme Court shall determine the destiny of the nation.”  Period.  It’s a lot shorter.  

It’s increasingly clear that a court majority thinks that the sovereign individual has a constitutional right to be free of any legislation based upon community morality.  Of course, all of this has moments of farce and you can’t read this stuff seriously for a long time without beginning to think of all kinds of quips about it.  Ted Olson pointed out that the Supreme Court had held that students could not pray before a high school football game that nobody be injured because that was an establishment of religion.  Previously, they had held that nude dancing was a form of expression and therefore had considerable First Amendment protection.  And Ted said, “Well, since nude dancing is a superior form of communication to prayer, perhaps the students should dance naked before the games.”    And I have only one caveat: the students must not get naked by doing the Dance of the Seven Veils, because that has biblical connotations and would be an establishment of religion.  

Well, Justice Scalia was less amused.   In a different case he wrote: “Day by day, case by case, this court is busy designing a Constitution for a country I do not recognize,” nor, I might add, do the American people recognize the country that is being reengineered against their will.  

The importance of a common basic morality was stressed by John Stuart Mill, who wrote: “In all political societies which have had a durable existence, there has been some fixed point, something which men agreed in holding sacred which it might or might not be lawful to contest in theory, but which no one could either fear or hope to see shaken in practice.  But when questioning of these fundamental principles is not an occasional disease but the habitual condition of the body politic, the state is virtually in a position of civil war and can never long remain free from it in act or fact.”  

That describes our culture war exactly; I think our culture war at home and the culture war in the West generally.  And the Supreme Court is contributing to it.  The Supreme Court is not causing it; it is reflecting it, it’s reinforcing it, it’s spreading it, but it’s broader than the Supreme Court.  

Nevertheless, the apparently endless multiplication of individual rights and privileges fragments rather than unifies a nation and indeed a civilization.  That’s a perilous condition for a civilization that must fight a long and bloody war against a determined adversary.  Europe may already be lost to Islam and if Europe goes, our position will become increasingly tenuous, but as George Weigel put it well about Europe, he said, “It is radical personal autonomy that has helped lead Europe into steep demographic decline.  It is radical personal autonomy that has brought Europe to denigrate its own civilizational achievements, seeing in its history only repression and intolerance, and it is radical personal autonomy that underwrites political correctness and its corrosive effects on Europe’s capacity to defend itself against internal Islamist aggression.”  

Now, that could describe a trend in this country.  It hasn’t gone as far as it has in Europe largely because this country is more religious than Europe, but we must be wary that radical personal autonomy does not take the United States further in the same direction, and one of the necessary steps to stop that is to restore a judiciary that is concerned less with Olympian personal autonomy and more with our actual Constitution.   

At the outset of these remarks I promised you some degree of hope and I won’t abandon that promise altogether, but the presence of Gene Meyer here reminds me that one of the most hopeful signs in legal education in the time that I’ve been involved with the law, which is longer than I care to admit, one of the most hopeful signs is the formation and the success of the Federalist Society.  It has done enormously good work.  

There’s also the appointments of John Roberts and Samuel Alito, which means there are now four justices who will not think their duty is to shape our destiny with newly invented rights of radical personal autonomy.  Of course, as some of you just mentioned, we could use a few more.  But there are other reasons for hope.  

The Supreme Court has long remained impervious to criticism.  No matter how devastating the analyses of its work, the court moves majestically on undeterred in pursuit of its own liberal agenda.  It reminded me of the old Arab saying: “The dogs bark, but the caravan moves on.”  Well, I was one of the barking dogs and the caravan kept moving on, but now there are signs that the criticism has begun to sting a bit.  The dogs barking have made some justices being to lose their tempers.  Justice Ruth Bader Ginsburg gave a speech denouncing the court’s critics, calling them a radical fringe responsible for all kinds of threats.  Justice Kennedy complained rather bitterly that the critics didn’t read the court’s opinions before disapproving of them.   The real problem may be that more people are reading the court’s opinions.  

Without overestimating it, I think you can say that the court’s behavior is crucial to democracy, to domestic morality, and an important part to the morale and determination of our people in the protracted war.  The court must become a political issue for the public at large.  It has been for the left wing of the Democratic Party; it must become a more urgent one for the Republicans.  If there were another vacancy during his term, I’m not sure George Bush, given his current political weakness, could get a solid nominee confirmed.  If that’s right, that means the restoration of legitimacy of the court and all that is contingent on that legitimacy will depend on the elections for president and senators in 2008.  Well, not much is certain in this world, but we do have reason for hope. 

Thank you.