The Lichfield Group

This article appeared in the December 18, 2005 issue of The Washington Post.

Misreading Robert H. Bork’s 1987 shipwreck, President George W. Bush is bizarrely instructing his Supreme Court nominees to disown their prior attacks on wayward constitutional thinking that he was elected to restrict or overturn. During his confirmation hearing, Chief Justice John Roberts dismissed tomes of his brilliant and caustic critiques of constitutional capers that he had authored under President Ronald Reagan as merely an attorney’s advice to a client. According to Roberts, his intellectual sneers at a generalized right to privacy summoned into being by the due process clause of the Fourteenth Amendment or the expulsion of religious shadows from public life by distorting the Establishment Clauses did not represent his views as an independent thinker. He joined the Reagan administration not because he was a Reaganite eager to alter the course of constitutional thought, but as an opportunist who would have been equally inclined to serve under President Jimmy Carter.

Nominee Sam Alito is similarly insisting that he served in the Reagan administration as an ambitious apparatchik uncommitted to conservative principles. Based on statements from Senators neither denied by the White House nor the nominee, Alito has distanced himself from his own writings assailing Roe v. Wade and a cluster of dogmas dear to Democrats, for example, racial preferences and welfare rights. Those writings, Alito is now saying, were crafted to curry favor with his superiors but did not reflect the authentic Alito.

It is unpersuasively argued by the Bush administration that intellectual disingenuousness is necessary to mollify Senate Democrats who would oppose a nominee too nakedly critical of their sacred cows or to avert the type of sound-bite demagoguery that destroyed Bork. Indeed, disingenuousness is likely to hike the risk of a confirmation debacle. It also blunts the paramount strategic objective of changing constitutional orthodoxies by running away from debate. Even the most gifted Supreme Court Justice cannot defeat conventional wisdom within the legal universe no matter how preposterous.

Senators naturally resent being treated as dupes. The explanatory statements of Roberts and Alito tacitly denying their Reaganite heritage are facially fatuous, akin to Thomas Jefferson disavowing the Declaration of Independence to win a seat on the British Privy Council or Supreme Court Justice Abe Fortas disputing that was a New Dealer despite racing to serve under President Franklin D. Roosevelt. President Bush nominated the two because their past writings substantially echoed the constitutional philosophy of Associate Justice Antonin Scalia. Neither would have been chosen if they had informed the White House that their gladiatorial attacks on the rationale of Roe had been contrived to gain favor with the Reagan administration. This is not to say that nominees can never repudiate earlier constitutional opinions. As President Abraham Lincoln lectured, a man who does not grow wiser by the day is a fool. But neither Roberts nor Alito asserted that their Reaganite legal writings contained intellectual deficiencies that had been superceded by sober second thoughts.

Equivocation over the past also places a cloud over the intellectual honesty of answers regarding current views and makes nominees less suitable for the Supreme Court. A belief in the Court’s intellectual integrity is essential to eliciting voluntary compliance with its decrees.

President Bush’s embrace of nominee disingenuousness over their Reaganite paper trails might be defensible if it were necessary for confirmation. But it is not. Bork’s rejection is demonstrably distinguishable. The Senate was then controlled by Democrats. It is now controlled by Republicans, who jumped their margin to 55-45 in the 2004 elections when judicial appointments figured prominently in the Senate races. Additionally, the nation is more ideologically conservative today than in 1987 when Democrats controlled Congress and the media was overwhelming liberal. Then there was then neither Rush Limbaugh nor Fox News Channel nor The Weekly Standard nor Matt Drudge nor Internet bloggers to counter the tendentious reporting and editorializing of the television networks, NPR, The New York Times and CNN. Compared with 1987, the public is more troubled with airbrush artist-like constitutional decisions, for example, recognizing a right to same-sex marriage and prohibiting “under God” in the Pledge of Allegiance. Congress unanimously denounced the latter, and approximately a dozen states by popular referenda amended their constitutions to deny same-sex matrimonies. Finally, conservatives were unprepared to respond to the liberal polemics against Bork. President Reagan, for instance, vacationed in California while Senator Edward Kennedy (D. Mass.) was falsely maligning Bork as callous towards back alley abortions and complacent with Jim Crow. In contrast, today conservative organizations like the Committee for Justice or Progress for America are flush with funds, talent and media access to promote the credentials of Alito and to answer extremist liberal detractors like People for the American Way or Alliance for Justice.

The tenderness with which Roberts did and Alito has treated Roe by recanting or softening their past scathing critiques is especially baffling. Scholars of all philosophical persuasions have decried its feeble reasoning, for example, Yale’s moderate-conservative Alexander Bickel, Harvard’s liberal John Ely and Archibald Cox, and University of Chicago’s conservative Richard Epstein. Associate Justice Harry Blackmun extracted a constitutional right to an abortion from penumbras and emanations of the Bill of Rights, the views of the American Medical Association, the American Public Health Association, and the American Bar Association, and the ink blot of the Ninth Amendment. Even Associate Justice Ruth Bader Ginsburg, a star graduate from the American Civil Liberties Union, has voiced doubts about Roe’s reasoning. Accordingly, Alito could openly attack Roe as wretched constitutional law but remain silent on whether the 32-year-old precedent should be overruled without risking a Bork-like firestorm from Democrats.

In any event, Roe’s rationale must be publicly discredited if a conservative philosophy which honors the intent of the Founding Fathers is to dominate constitutional law by becoming orthodox. Roe makes the moral or social views of the Justices supreme over the original meaning of the Constitution. It gave birth to the outlandishness in Planned Parenthood v. Casey (1992) that defines protected liberty as “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” which would include practices ranging from polygamy to crashing airplanes into the World Trade Center. Roe also spawned the recognition of a constitutional right to homosexual sodomy in Lawrence v. Texas (2003), which candidly celebrated interpretations that pivot on the fluctuating sentiments of the community and the Justices as the expense of the Constitution itself: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

The pendulum of constitutional law has been a pendulum of changing intellectual or moral orthodoxies overcoming brilliant detractors on the Supreme Court. Chief Justice John Marshall’s lucid defense of private property in Dartmouth College v. Woodward (1819) succumbed to a rising tide of populism and egalitarianism that found expression in Charles River Bridge v. Warren Bridge (1837). The ascendant racism during the post-Reconstruction era explains the odious “separate-but-equal” doctrine of Plessy v. Ferguson (1896) despite the unanswerable dissent of Associate Justice John Harlan. The discredited Lochner era (1905-1937) frowning on all manner of social or economic regulation was guided by Social Darwinism and Herbert Spencer’s Social Statics over the persuasive protests of Associate Justices Oliver Wendell Holmes, Louis Brandeis, and Harlan Fiske Stone.

Roe’s conception of Supreme Court Justices as Platonic Guardians tasked to improve on the Constitution through inventive interpretations must be replaced by an understanding that they are under the law if a conservative philosophy is to prevail and endure. But Roe’s orthodoxies will not change without a public fight, just as the Scopes trial was necessary to jar thinking about Genesis. If Alito continues to shy from criticizing Roe in all its moods and tenses, then his confirmation will mark another turning point in the Supreme Court, as in 1969 and 1986, which did not turn.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.