1 Justice William J. Brennan, Jr., speech at Georgetown University, 12 Oct. 1985.Google Scholar

2 Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar

3 Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

4 Reynolds v. Sims, 377 U.S. 533 (1964).Google Scholar

5 Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar

6 Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

7 Bork goes on to state that “no one, however pro-abortion, has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision….There is no room for argument … that the decision was the assumption of illegitimate judicial power and usurpation of the democratic authority of the American people” (at 115). Yet 885 law professors signed an amicus brief in the Webster case supporting Roe; and in 1990 the House of Delegates of the American Bar Association voted to recognize that “the fundamental rights of privacy and equality guaranteed by the United States Constitution … [include] the decision to terminate [a] pregnancy.” Cited in Laurence Tribe, Abortion: The Clash of Absolutes 82 (New York: Norton, 1990) (“Tribe, Abortion”).Google Scholar

8 Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 147 (1986).Google Scholar

9 Results of the New York Times/CBS News Poll conducted on April 13–16, 1989, and reported in the New York Times on 26 April 1989.Google Scholar

10 In his emphasis on the search for principles, Judge Bork, ironically, may be closer to both Ronald Dworkin and William Brennan than he cares to admit.Google Scholar

11 Michael H. v. Gerald D., 109 S. Ct. 2333 (1989).Google Scholar

12 Cf. Tribe Abortion 101.Google Scholar

13 Michael H. v. Gerald D., 109 S. Ct., at 2351.Google Scholar

14 Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar

15 On objections to original intent theory, see generally Leonard Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988) (“Levy, Original Intent”). See also Mark Tushnet, “The U.S. Constitution and the Intent of the Framers,” 1 Tikkun 35 (1986); and Walter F. Murphy, “Constitutional Interpretation: The Art of the Historian, Magician, or Statesman,” 87 Yale L.J. 1752 (1978).Google Scholar

16 Cited in Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L Rev. (1985), 885, 936.CrossRefGoogle Scholar

17 Tribe, Abortion 107 (cited in note 7).Google Scholar

18 McCulloch v. Maryland, 4 Wheat. 316 1819).Google Scholar

19 Jack N. Rakove, “Mr. Meese, Meet Mr. Madison,”Atlantic Monthly, Dec. 1986, at 79.Google Scholar

20 Id.Google Scholar

21 Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harv. L Rev. 1 (1959).CrossRefGoogle Scholar

22 For example, in disparaging Laurence Tribe's contention that Roe is not a case about privacy so much as a case about the subordination of women through the exploitation of pregnancy, Bork says: “I am told that Tribe's analysis here is entirely derivative from the work of feminist constitutional scholars” (at 202). Bork's critique of Critical Legal Studies as “anti-intellectual” and “Marxist” merely reveals his ignorance of an important development in modern jurisprudence. His ad hominem disparagement of some of its leaders, and his resort to 1950s smear language such as “and its fellow travelers” is, quite frankly, offensive.Google Scholar

23 Marbury v. Madison, 1 Cranch 137 1803).Google Scholar

24 Brown v. Board of Education, 347 U.S. 483 (1954).Google Scholar

25 Wechsler, 73 Harv. L Rev. (cited in note 21). He defines neutral principles as follows: “A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case … that in their generality and their neutrality transcend any immediate result that is involved” (at 19).Google Scholar

26 Thurgood Marshall, then General Counsel of the NAACP Legal Defense Fund, argued that at best the Fourteenth Amendment provided no specific guidance and therefore the issue should be decided on the basis of current values and conditions. Davis, the lead advocate for the respondent states, argued that the history of the Fourteenth Amendment conclusively demonstrated that the equal protection clause did not mandate public school desegregation. Chief Justice Warren's opinion for the Court, as we know, adopted Marshall's argument that the history of the Fourteenth Amendment was inconclusive on this point, and therefore that the Court could not “turn the clock back” to 1868, or even to 1896, when Plessy v. Ferguson, 163 U.S. 537, was decided.Google Scholar

27 There is an obvious contradiction between his choice of a “general” decisional principle to govern Brown here and his endorsement of the Scalia position in Michael H. Google Scholar

28 Sweatt v. Painter, 339 U.S. 639 (1950).Google Scholar

29 See Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 14–15 (1971); and Gary B. Born, “Robert H. Bork's Civil Rights Record,” 9 Cardoso L Rev. 76 (1987).Google Scholar

30 Boiling v. Sharpe, 347 U.S. 497 (1954). Bolling applied the Brown ruling to the District of Columbia by holding that the Fifth Amendment contained, by implication, an equal protection component. Bork opposed this “reverse incorporation” as little more than substantive due process—a clear rewriting of the Constitution. There can be little argument with the observation that Bolling was inconsistent with the original intent of the Fifth Amendment; the Court's decision was admittedly expedient, since to permit segregated schools to continue in the nation's capital would have been ‘unthinkable.” But Bork might have extended his “principled” defense of Brown to cover Bolling as well. Refusing to do so, however, left him at the Senate hearing in the position of defending segregated schools. As reported by William Haltom, however, Bork, at the insistence of his advisors, then assured the Judiciary Committee that he regarded Bolling as settled law and would not vote to overturn it. This “pragmatic” response only left him vulnerable to the charge that his originalism was selective. See William Haltom, “Rituals of Confirmation for the Federal Courts,” paper delivered at the 1990 meeting of the American Political Science Association, at 23–24 (“Haltom, ‘Rituals’”).Google Scholar

31 There is at least a weak “original intent” argument to be made for judicial review, but Marshall didn't attempt to make it. Herbert Wechsler has made the best effort yet—resting the claim for implied judicial review largely on the supremacy clause of article VI, and the fact that it was a power utilized by colonial and state judges under the Articles of Confederation. See Wechsler, 73 Harv. L Rev. (cited in note 21).Google Scholar

32 Fletcher v. Peck, 6 Cranch 87 1810).Google Scholar

33 First, Judge Bork overstates the holding of the case. He claims that the Supreme Court said “that the decision of a state court under common law rules constitutes the action of the state and therefore is to be tested by the requirements of the Constitution.” What the Court held was that discriminatory state action in violation of the Fourteenth Amendment had occurred because the state courts had “actively intervened” to prevent Mrs. Shelley from occupying her new home. By the time the case had reached the Supreme Court Mrs. Shelley was living in her house. Thus a negative decision by the Court would have promoted racial discrimination. Nowhere in Chief Justice Vinson's opinion can one find a statement as broad as Bork's interpretation. Second, he offers a hypothetical example of the mischief that would result from applying Shelley as he interprets it. His example, however, strongly resembles the later case, Bell v. Maryland, 378 U.S. 226 (1964), in which a majority of the Court refused to extend Shelley that far. Third, in that same example (which involves a First Amendment twist) Bork restates and expands on his misinterpretation of Shelley:“all private conduct may be made state conduct with the result that the Supreme Court will make the rules for all allowable or forbidden behavior by private individuals. That is not only a complete perversion of the Constitution of the United States, it makes the Supreme Court the supreme legislature.” Judge Bork's last sentence is correct. But the Court never said what he attributed to it; indeed in a series of later cases the Court, while applying Shelley to a wide variety of situations of racial discrimination such as protest marches and sit-ins, made clear that discriminatory state action must involve some active state involvement sufficient to convert a private discriminatory decision to one for which the state could be held responsible. See Moose Lodge #107 v. Irvis, 407 U.S. 163 (1972). Had the Supreme Court made the decision Judge Bork describes, his criticisms would have been more to the point.Google Scholar

34 Moose Lodge #107 v. Irvis, 407 U.S. 163 (1972).Google Scholar

35 A point Judge Bork, in general, agrees with, Bork, 47 Ind. LJ. at 17 and passim. Google Scholar

36 President Nixon wrote to Senator William Saxbe on March 31, 1970, saying: What is centrally at issue in this nomination is the constitutional responsibility of the President to appoint members of the Court—and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or their own subjective judgment for that of the one person entrusted by the Constitution with the power of appointment. The question arises whether I, as President of the United States, shall be accorded the same right of choice in naming Supreme Court Justices which has been freely accorded to my predecessors of both parties….Google Scholar

… [I]f the Senate attempts to substitute its judgment as to who should be appointed, the traditional constitutional balance is in jeopardy and the duty of the President under the Constitution impaired.” Cited in 116 Cong. Rec. 10158 (1970).Google Scholar

38 See, e.g., Gregory A. Caldeira & John R. Wright, “Lobbying for Justice: The Rise of Organized Conflict in the Politics of Federal Judgeships,” paper delivered at the 1990 meeting of the American Political Science Association (“Caldera & Wright, ‘Lobbying’“); and Haltom, “Rituals” (cited in note 30).Google Scholar

39 Caldeira & Wright, (“Lobbying”). Also see John Anthony Maltese, “The Selling of Clement Haynsworth: Politics and the Confirmation of Supreme Court Justices,” 72 Judicature 338 (1989).Google Scholar

40 N.Y. Times, 24 July 1987, at A12. Three years later, however, a National Law Journal/Lexis survey reported that only 15% of the respondents believed that “the Senate and the President” should take into account the political philosophy of a nominee to the Supreme Court. But reflecting the absence of a salient nomination struggle at the time, most respondents had no opinion. And the question lumped the president and the Senate together.Google Scholar

41 Described in Joel B. Grossman & Stephen L. Wasby, “The Senate and Supreme Court Nominations: Some Reflections,”Duke L.J. 558 (1972).CrossRefGoogle Scholar

42 Laurence H. Tribe, God Save This Honorable Court (New York: Random House, 1985).Google Scholar

43 Caldeira & Wright, “Lobbying”; Haltom, “Rituals”.Google Scholar

44 See Charles O. Jones, “The Diffusion of Responsibility: An Alternative Perspective for National Policy Politics,” Governance: An International Journal of Policy and Administration (forthcoming, 1991).Google Scholar

45 Levy, Original Intent (cited in note 15). See also in this issue Paul R. Dimond, “Common Sense About an Uncommon Rejection,” 15 Law & Soc. Inquiry 767 (1990), who argues that Levy's historical analysis is incorrect.Google Scholar