Free Coercing Virtue by Robert H. Bork

the judicial philosophy of original understanding are unlikely to win confirmation. Nevertheless, the attempt to change views about proper judging and to confirm candidates with those views, unsuccessful though it has been and bleak as are its prospects in the immediate future, may be the only chance to divert the Court from antidemocratic activism in the service of liberal cultural aggression.
    The second nonstructural cure for judicial usurpation of the democratic process is to persuade the Court itself to mend its ways, but so far any such effort has proved utterly ineffective. The Justices appear to be impervious to argument. They make no attempt whatever to answer the criticisms leveled against their conduct. There was a time when academic lawyers worried about the counter-majoritarian nature of judicial review and the absence of any checks upon the Court. The only protection they found lay in the notion that the Supreme Court Justices are confined by tradition. That is all there was or ever could be, according to Alexander Bickel, though, by the time of the Warren Court, even that tradition, he said, had been shattered. I am not sure there ever was much of a tradition capable of confining the Court. There may have been a degree of restraint arising from apprehension about the reaction of the public, the profession, and the other institutions of government. But now, whatevertradition there was, has indeed been broken and any lingering apprehension has been dissipated by the inertia of political opposition.
    In any event, it was said that the Court would be kept to a proper path by the necessity that it justify its decisions by tight reasoning that connected those results to the text and history of the Constitution. If its reasoning faltered, if it displayed will rather than judgment, it would be brought back to its duty by the informal criticism of the bar. That assurance turned out to be an idle fancy. The bar now resembles a collection of businessmen interested only in maximizing profit, rather than a body of professionals interested in maintaining the integrity of the judicial role. Indeed, the bar tends to identify with the courts and to resent any criticism of them. Daniel Troy has collected examples. So far sunk in Court worship is the American Bar Association – once a professional group, now a liberal political faction – that its president could say: “An attack on activist judges is an attack on our Constitution. It is an attack on our tripartite system of government.” Another claimed that critics of the judiciary are “taking a page out of George Wallace’s playbook” – meaning that the critics are irresponsible demagogues. He compared politicians who criticize activist courts to Communist Party officials in the Ukraine who demanded that judges phone them to be told what results to reach. We are, the ABA informs us, in crises that threaten judicial independence. One ABA official proposed professional discipline, including disbarment, for politicians who are also lawyers and who criticize judges.The legal academies are even worse, not only defending judicial imperialism but devising theories justifying further incursions on territory rightfully belonging to democratic government.
    The bar, one must conclude, is today incapable of the disinterested evaluation of judicial performance that we once thought would be a check on runaway courts. There seems to be no institutional check on activist judges. Nor is there any prospect of such a check so long as courts, the organized bar, the legal academy, and the media form a Court Party serving the interests of the New Class to which they belong.
    This necessarily scanty review of the American Court’s activist rewritings of the Constitution has touched only a tiny number of such decisions. One would suppose that the Court or some of its members would by now have undertaken a justification for such radical and habitual activism. The obtrusive and uncomfortable