In the twilight of his presidency, Ronald Reagan moved to make one final touch on his legacy by nominating federal appellate court Judge Robert Bork to the Supreme Court. Bork, a legal titan of his day, was the modern father of judicial restraint inspiring the likes of Antonin Scalia, Clearance Thomas, and Neil Gorsuch. Judge Bork was in a class of his own with masterful writing on many controversial rulings. Sadly, his copious amounts of writing proved to be his downfall as Senators Ted Kennedy and Joe Biden led a campaign full of half-truths and unfair personal smears caused Judge Bork to fail to reach sixty approval votes.
Despite this, Bork went on and continued to write and examine the American Constitution. In his book, The Tempting of America, Judge Bork gives a history of judicial activism in the United States and the dangers of legislating from the bench. Bork lays his case out against justices such as Earl Warren and Hugo Black for unintentionally giving the high court much more power than was originally intended by the framers. Being the founder of modern originalist thought, Judge Bork frames what we can describe as today’s main Constitutional debate. Should we reinterpret the Constitution through a progressive lens, or should we stick as close as we can to the original interpretation? What rights are enumerated and which ones are implied? Why does the Supreme Court simply find the power to create new rights without amending the Constitution and without consent of Congress? Is the Constitution law or simply a guideline?
If Bork is correct, activist judges, whether be it by accident or on purpose, increased their legislative power massively throughout the 20th century. Not only this, but in recent years they have become politically motivated. Many progressives hinge their hopes on the courts to bring about their vaunted view of social change; however, pressing an unelected body of federal judges to do one’s political bidding can be the slipperiest of slopes. It is not the job of judiciary to bring about any sort of social change. The sole job the federal courts (and all courts for that matter) have is to preside over what is and what is not constitutional considering the cases brought before them. While many liberals have cheered at the rulings of gay marriage, abortion and so on, they fail to see the irony that an unelected body of judges is now making rulings in their favor while progressives claim to champion democracy.
Legislating from the bench is one of the biggest threats to American democracy today, and should the Left (or the Right for that matter) continue to press the courts for politically and socially motivated rulings, they will come to regret it. If we stay on our current trend, Supreme Court justices will soon have the power to write rights into the Constitution. So if a justice can say that “X” is now officially constitutional right, what else can they say is a constitutional right? What other implications on American democracy may they have? Moreover, what gives them the legitimacy to make that choice if it isn’t enumerated in the Constitution? What gives them any more legitimacy than say, the Joint Chiefs of Staff at this juncture? The only way to create new rights is via the Amendment process. Unfortunately for us though, political expediency with a hint of consequentialism is the special on the menu for the foreseeable future. Robert Bork warned that the federal judiciary can become an illiberal institution that will wear away at the rights of the American voter. If the judiciary continues to expand it’s supposed authority to legislate, then our republican system of government is broken.