Reagan’s Justice

If President Reagan is reelected and serves four more years he is likely to make several appointments to the Supreme Court beyond the one he has already made. (Five of the present justices are aged seventy-five or over.) His justices would then dominate the Court for a generation, and through their decisions for longer than that. Reagan’s recent appointments of academic lawyers to the circuit courts of appeal—those just below the Supreme Court in the federal system—provide an important clue to the kind of choice he is likely to make, given the chance, for the Supreme Court itself.

He appointed Professor Robert Bork (who, as Nixon’s solicitor general, fired Archibald Cox as the Watergate chief prosecutor after Bork’s superiors resigned rather than do so) to the District of Columbia circuit court.¹ Bork was well known while at the Yale Law School for his extremely conservative views on constitutional law. He is fond of saying that judges should enforce the law they find, not make up new laws to suit their own political convictions. Some of the most conservative of the present justices, notably William Rehnquist, say the same thing, but as the political power of moral and religious fundamentalism has increased in the country they have grown impatient with the traditional legal methods that protect individuals from majority will.

Two justices generally counted as moderates, John Paul Stevens, who was appointed by Ford, and Harry Blackmun, appointed by Nixon, have complained publicly against this tendency—Blackmun said that the Court was moving to the right “by hook or by crook”—and their remarks have provoked several press and magazine articles about the Court and about Reagan’s potential appointees. Bork is mentioned prominently among these—a recent Time article put him at the top of the list—and he has just demonstrated a more blatant distaste for ordinary legal argument than any of the justices about whom Stevens and Blackmun complained.

Bork disregarded recent and important Supreme Court precedents in a widely reported decision denying that homosexuals have any constitutional right against discrimination.² His methods and argument will trouble people who worry about the declared intention of Reagan’s supporters to enforce their own private sexual morality by law, and who might have hoped that the Constitution would protect the nation from that form of oppression.

James L. Dronenburg served nine years in the United States Navy as a linguist and cryptographer with top security clearance. He was discharged in accordance with a Navy “instruction” which states that any member of the Navy “who solicits, attempts or engages in homosexual acts shall normally be separated from the service. The presence of such a member in a military environment seriously impairs combat readiness, efficiency, security and morale.” The Supreme Court has never expressly declared that homosexuals have a constitutional right to engage in the sexual practices they believe are normal for them. Twenty-five states still have statues making sodomy a crime, though many of these statues are rarely enforced. But in a series of important decisions the Court has recognized a right to what is called “privacy,” and Dronenburg’s lawyers argued that these decisions can only be justified on the assumption that the Constitution protects freedom of choice in nonharmful homosexual as well as heterosexual activity. We must review the major decisions they rely on to understand the force of that claim.

In Griswold v. Connecticul³ the Court held that husbands and wives have a constitutional right to purchase and use contraceptives. Some of the justices suggested that this right was based in the private character of marriage, and it was arguable, just after Griswold, that it was limited to married couples. But the Court rejected that reading some years later, in Eisenstadt v. Baird,⁴ and held explicitly that unmarried people also had a right to use contraceptives if they wished. In Carey v. Population Services International⁵ it went further and held that the State of New York could not restrict the sale of contraceptives to licensed pharmacists or prohibit their distribution to children under sixteen.

The right to “privacy” was used in a very different context in Loving v. Virginia⁶ to strike down a statute prohibiting interracial marriages. And the Court relied on the same right to even more dramatic effect in its famous abortion decision, Roe v. Wade.⁷ Justice Blackmun, writing the Court’s opinion in that case, took the occasion to summarize the extent of the right to privacy the Court had so far acknowledged:

The Constitution does not explicitly mention any right of privacy. In a [long] line of decisions, however,…the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution…. These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty”…are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education [citations omitted].

Blackmun’s decision held that a woman’s right to an abortion was sufficiently “fundamental” to qualify for constitutional protection. “The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent,” he said, and he pointed to, among other kinds of damage, the “distressful life,” the “psychological harm,” and the risks to “mental and physical health,” that a prohibition on abortion might entail. It does not follow, he said, that the Constitution makes that right absolute. It follows only that a state needs a “compelling state interest” to justify any constraint on the right, and that “legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” He said that the states have a sufficiently compelling interest to regulate abortions after the first trimester of pregnancy “in ways reasonably related to maternal health” and to prohibit them altogether after the fetus is “viable” except when an abortion is necessary for the life or health of the mother. But he held that the states have no right to prohibit abortion during the first trimester.

Dronenburg’s lawyers argued that these decisions, taken together, recognize a comprehensive right of individuals to be free from control by the state in sexual matters, when the choice in question is of “fundamental” importance to them and involves no coercion or threat of harm to themselves or others. Circuit court judges are obliged to respect Supreme Court decisions by trying in good faith to identify and enforce the constitutional principles latent in these decisions in the new cases that come before them. If Bork had accepted that responsibility he would have had to confront several questions before affirming Dronenburg’s discharge.

(1) Do the “privacy” decisions actually presuppose a principle ranging over sexual choice generally? Or can they be explained through some other, less expansive, principle that justifies limiting constitutional protection to contraception, marriage, and abortion? It seems doubtful that they can. There are, of course, differences between these issues and homosexuality. But the great abstract provisions of the Constitution, like the due process clause, on which some justices relied in these cases,⁸ must be understood as expressing general principles of political morality, not arbitrary favors to one or another section of the public. And it is difficult to form an acceptable general principle that justifies freedom of choice in some aspects of sex, like contraception and abortion, but not in others equally important to the people affected.

(2) If the constitutional right does extend beyond contraception and abortion to other fundamental aspects of private sexual life, then is the freedom of homosexuals to choose willing adult sexual partners sufficiently fundamental to fall within it, given the other liberties the Supreme Court has already included? It seems hard to deny that it is. The risks Blackmun cited to women denied an abortion are also, and at least equally serious, risks to homosexuals, whose normal sex life is made a crime. If they obey the law, they may suffer severe psychological distress, and may well suffer mental harm; they lose all possibility of the physical and emotional intimacy other people consider essential aspects of a flourishing life. In any case, the damage to homosexuals denied sex altogether cannot be thought less important than the inconvenience to people who are made to go to a drugstore to buy condoms.

(3) If homosexuals have a constitutional right to freedom of choice in their sexual activity, did the Navy nevertheless have a sufficiently “compelling” interest to justify discharging Dronenburg and leaving him with no career after nine years of military training and service? Discharging homosexuals from military service is less serious than making homosexual acts criminal. But it is discrimination nevertheless, and unconstitutional if it lacks a special justification. The Navy may have been able to show a compelling reason for removing Dronenburg from his top security job. Perhaps homosexuals are, in general, more vulnerable to blackmail and so greater security risks than heterosexuals.⁹ But that would not justify the Navy’s discharging Dronenburg altogether; his work as a linguist and in language schools would presumably not be affected by the loss of his security classification.

The Navy might argue that it has a compelling interest in discipline and the impartial authority of superiors, which is undermined by sexual relations among members of the same unit or base or within a Navy barracks. But this interest, even if it were regarded as sufficiently strong to override constitutional rights, would apply to heterosexual as well as homosexual activity among members, and would in any case not justify the broad Navy “instruction” that appears to authorize discharge for any homosexual acts at all, wherever and with whomever they take place. So the regulation under which Dronenburg was discharged outright could not be justified as “narrowly drawn to express only the legitimate…interests at stake,” to quote Justice Blackmun’s decision in Roe v. Wade.

It is far from clear that the Supreme Court would accept these arguments and hold that the constitutional right of privacy extends to homosexual acts even in principle.¹⁰ In Dronenburg’s case, for example, it might avoid the constitutional issue entirely, as wise courts have done whenever appropriate, by trying to show that the Navy had compelling reasons for discharging him whether or not homosexuals have a constitutional right not to be made criminals. Or it might decide that homosexuals do not have that right by using some principle purporting to show why the Constitution protects individuals from popular morality in the case of abortion but not homosexuality. It might say, for example, that acts deemed very wicked in most countries in most periods of history are disqualified from constitutional protection, though it would have difficulty drafting that unappealing proposition, let alone defending it as part of our constitutional structure.

Bork found it unnecessary to make either of those arguments. Instead he announced a surprising doctrine: that when the Supreme Court has “created a new right,” rather than explicating some “value” already stated in the Constitution, lower court judges have no responsibility to formulate a coherent statement of the right by considering how the principles that are presupposed by the Court’s past decisions may bear on the interpretations they make. The lower court judges should look only to principles the Court has itself already “articulated.”

The rest of Bork’s opinion shows what that means: lower courts dealing with a “new” right may refuse to recognize the right in any circumstances in which the Court has not explicitly recognized it itself.¹¹ Since, according to Bork, the right to privacy is a “new” right, he is not required to ask whether any principle can be found that would justify constitutional protection for the liberties the Court has recognized but would not extend to homosexual acts with consenting adults as well. Does Blackmun’s statement in Roe v. Wade about the right to privacy, which I quoted, not count as an “articulated” principle? Bork’s answer is short.

Those formulations are not particularly helpful to us, however, because they are less prescriptions of a mode of reasoning than they are conclusions about particular rights enunciated. We would find it impossible to conclude that a right to homosexual conduct is “fundamental” or “implicit in the concept of ordered liberty” unless any and all private sexual behavior falls within those categories, a conclusion we are unwilling to draw.

“Candor” requires Bork to add that he himself thinks that the Supreme Court acts wrongly whenever it does “create new rights.” The message is clear enough: if the Supreme Court acts in a way Bork thinks wrong he will not apply its decisions in a principled manner. It is therefore very important to try to understand what he means by “new rights,” in order to know when we can expect this form of argument from him and other lower court judges like him.

He says that rights are new rights unless they can be “fairly derived by standard modes of legal interpretation from the text, structure, and history of the Constitution.” But of course every Supreme Court justice thinks that his or her views about constitutional rights do represent the proper way to interpret the language and design of that document.¹² So the doctrine that “candor” forces Bork to confess is only the platitude that the justices should not make mistakes. But this makes his radical doctrine all the more troubling, because it means that he will refuse to treat past Court decisions as embodying general principles whenever the Court has not followed the methods that he himself prefers.

What methods, then, must the Court follow to earn Bork’s cooperation? We should look, for our answer, to his published essays on constitutional theory,¹³ though there are echoes of these essays throughout his Dronenbrug opinion. He says that judges “must stick close to the text and the history [of the Constitution], and their fair implications…,” but this abstract formulation, with which almost everyone would agree, leaves all the difficult questions open. What process of interpretation produces “fair” implications? What are the fair implications from the text and history of, for example, the Fourteenth Amendment, which commands “equal protection of the laws”?

These central questions have been the main topics of a running debate among constitutional lawyers for several decades. Academic lawyers have developed a large number of theories ranging from the claim that the only fair interpretation is one limited to what the “framers” actually contemplated, in concrete detail,¹⁴ to the claim that a fair interpretation is one that treats the framers as having laid down general concepts of political principle that the Supreme Court must fill out through philosophically defensible accounts of those concepts. Bork thinks his own theory is closer to the first than to the second of these poles, but that is not so, as the following important example reveals.

Bork asks whether the Court “stuck close to the text and history” in its famous 1954 Brown decision¹⁵ holding racial school segregation unconstitutional, and later decisions requiring all state facilities integrated. It did not do so, he argues, if that formula means applying the equal protection clause of the Fourteenth Amendment only to practices the statesmen who enacted it themselves intended to outlaw, because there is no evidence that these statesmen had education in mind, let alone municipal swimming pools.

But Bork concedes that his formula does not require that kind of deference to the very specific intentions or convictions of officials who, after all, drafted the amendment in general rather than detailed language. He recommends, instead, the following more speculative method of argument. It is plain enough, he says, that the equal protection clause was meant to provide some large form of racial equality as a constitutional requirement, though the framers probably were uncertain or disagreed about exactly which form. So the Supreme Court must define an appropriately “neutral” principle of racial equality to fit the clause, that is, a principle it can defend as not based on the particular political interests or causes of particular justices. Bork says that only one principle will meet that test: that all forms of racial distinction are invalid. So the Supreme Court was right to insist on desegregation not only of schools but of public swimming pools and other facilities as well.

The argument is persuasive, but Bork is wrong to think that it involves only historical or linguistic judgments. For someone just as faithful to bare text and strict history could have reached a very different conclusion about how the equal protection clause should be read. Since the congressmen who enacted the Fourteenth Amendment after the Civil War presumably had blacks in mind, as the victims of racial discrimination, why should the Court not have interpreted the clause as protecting only that race? Why should the clause be understood as protecting other minority races and ethnic groups as well? (Bork says, in Dronenburg, that the Constitution contains a “specific” protection of “ethnic” as well as racial minorities, but neither that word nor any synonym appears in the text, and it is historically adventurous to assume that post–Civil War statesmen were concerned to give Italo-Americans, for example, constitutional standing.)

Why should the constitutional principle not be interpreted as calling for equal but not necessarily integrated facilities, as the Court itself had said in Plessy v. Fer-guson,¹⁶ decided much sooner after the Fourteenth Amendment was enacted? Why should the principle not be broader than the Court said it was in Brown and later cases; why should it not be understood to command, for example, an economic system that provided equal economic standing for different racial groups? Once the Court denied that its interpretation of the Constitution was restricted to the actual, concrete intentions of the congressmen who drafted the amendment, it could have defended each of these principles, with equal historical authority, as reflecting the general ambition of the framers to provide some “large” form of racial equality.

The Court’s choice of one of these principles—the one it actually developed in Brown and the later cases concerning racial discrimination—can be justified only by adding to the narrow linguistic and historical arguments Bork favors very different arguments drawn from what he disdainfully calls “moral philosophy.” ¹⁷ The Court was obliged to find some constitutional conception of equality it could defend both as principled, as marking genuine differences of political morality rather than only arbitrary classifications, and as consistent with other parts of the general constitutional design. Any principle limited to blacks, or any other particular racial or ethnic minority, would have offended the first of these requirements, because it would be unprincipled and arbitrary, however it might have appealed to some of the framers whose general injunction the Court was explicating.

Any principle much broader than the one the Court developed would have offended against the second requirement, that of consistency. Since the Constitution cannot plausibly be understood as requiring general economic equality, any principle demanding economic equality for all racial groups would be arbitrary in a different way. What Bork calls “philosophy” is therefore not an “undemocratic” alternative to a more chaste, more severely historical approach, but an inescapable, absolutely necessary part of any historical approach not patently absurd.¹⁸

The example is instructive because it discredits Bork’s assumption that there is any useful distinction in structure between the method he approved for the race cases and the method he denounces, as creating “new” rights, in the privacy cases. For we can reconstruct the argument for privacy on the model of his argument for integration. The legislators who enacted the due process clause, for example, had a general ambition to secure what Justice Cardozo once called, in the phrase Blackmun repeated, the great idea of “ordered liberty.” They did not specify what due process was, or which liberties were consistent and which were inconsistent with order, perhaps because they were uncertain or divided about those issues, or perhaps because they wanted the general idea, and not their own diverging and unformed ideas, to provide the constitutional standard.

So the Supreme Court has a duty to find some conception of protected liberties, some statement defining which freedoms must be preserved, that is defensible both as a political principle and as consistent with the general form of government established by the Constitution. The Court tried to acquit that duty in the contraception and abortion cases. It decided that any proper account of protected liberty, in a society that respects liberty in principle, must include freedom to choose concerning marriage and procreation—at least so long as the choice is not harmful to oneself or others whom the state must treat as persons.

That is an attractive statement of the principle of ordered liberty. A nation that rejects it, and thinks order is jeopardized unless the majority has the power to dictate how everyone must arrange the most intimate and private aspects of his or her life, leaves nothing to the idea of liberty at all. So it is at least plausible to suppose that a principle protecting individual choice in private decisions was needed to satisfy the framers’ general ambition to establish some realm of “immunity” where a person is free from coercion by the majority. But though this argument has the same structure as the argument Bork approves for the race decision, it does not follow that it is as good an argument. It must be tested in detail by asking whether any more limited account of protected liberties could be defended as not arbitrary and more in keeping with other aspects of the constitutional arrangement.

Many constitutional lawyers would argue that those who enacted the due process clause were themselves more concerned with procedural aspects of the legal process than with protecting personal liberties. But this is not a decisive argument, any more than it is decisive to say, in interpreting the equal protection clause, that its framers were more concerned with formal equality before the law than with effective racial integration. In both cases the Court’s responsibility is to ask whether a constitutional doctrine limited to what the framers had concretely in mind would be principled rather than arbitrary. The proposition that individuals must be secured from majority tyranny when it comes to deciding which procedures will be used to try them for crimes, but not when it comes to defining the crimes themselves, evidently seemed to the Court too arbitrary, too lacking in principle.

There may well be good objections to that argument and to the Court’s privacy decisions.¹⁹ Bork himself provides none however. He rests his case on the simple declaration that those decisions created new rights, and need not be treated in a principled way. This can only mean that he himself is willing to allow the central question of sexual morality, though not of racial morality, to be decided at the ballot box.

Bork’s constitutional theory contains a great deal more, beyond his views about sexual minorities, that we ought to notice if we are concerned about Reagan’s selection of judges. Several important free speech cases will come to the Court soon and he thinks, for example, that most of the modern constitutional law of free speech is a mistake. That law is now largely based on the famous dissents of Holmes and Brandeis in 1920s cases that affirmed convictions under sedition acts. Benjamin Gitlow, for instance, was convicted of “criminal anarchy” because he published a manifesto calling for what the Supreme Court summarized as “mass industrial revolts developing into mass political strikes” that were aimed ultimately at “conquering and destroying the parliamentary state and establishing in its place… the system of Communist Socialism.”²⁰ In Whitney v. California the defendant was convicted of the crime of being a member of the Communist Labor party of California, an organization that was deemed to advocate using unlawful means to alter the political system.²¹ In neither case was the state able to show that the defendant intended to incite any immediate violence, or that any danger was likely to flow from what he or she had said.

Holmes and Brandeis, in these and other cases, argued passionately for what came to be called the “clear and present danger” principle: that freedom of speech is so important a value in our democracy that speech should in no case be constrained unless, in Brandeis’s words, it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent.” Their view prevailed;²² the majority decision in Gitlow, Whitney, and the other sedition cases are now thought by almost everyone to have been mistakes. Many constitutional lawyers think the “clear and present danger” test defines the constitutional right too narrowly: a society that cherishes freedom of speech, they think, should risk some larger danger than this test requires to protect it. Bork, on the contrary, believes the test entirely too protective: he thinks the decisions convicting Gitlow and Whitney were right, for the chilling reason that, in his opinion and contrary to that of Holmes and Brandeis and almost every political philosopher who has discussed the issue since John Stuart Mill, speech of their sort “has no political value within a republican system of government.”

So free speech in politics, for Bork, means freedom for speech that the judges deem to have some value. He, for one, thinks that speech fundamentally challenging our political system can have none because he thinks that the only value of airing ideas lies in their truth. His theory of the First Amendment is even worse than this suggests, however. For he says the amendment has no application whatever to speech that is not directly political, however valuable it might be. “It does not cover scientific, educational, commercial or literary expression as such. A novel may have impact upon attitudes that affect politics, but it would not for that reason receive judicial protection.” Under Bork’s Constitution a state could ban the sale or possession of Ulysses, because it is sexually explicit, or the works of Sartre, because he was arguably a Marxist, or Proust, because he was a homosexual, or biology texts that discuss racial genetics, because these might be distressing. It would only be necessary to show that each of these decisions could be thought rationally related to the goal of “implementing” the popular “morality” of the community.

We must keep Bork’s view of the Constitution in mind when we consider what we might expect from a Supreme Court dominated by justices who share his attitudes. The Court has had powerful conservative as well as liberal members in the past. But most of them accepted a general duty of intellectual responsibility toward constitutional law as a principled whole. They understood—even emphasized—the need to follow principles laid down in past precedents and not to ignore or repeal these just because they disliked the substantive results. The present Supreme Court has shown a disquieting tendency to abandon that restraint, as Justices Stevens and Blackmun remarked. But it has never expressly adopted Bork’s position that it may limit its deference to past decisions only to their particular circumstances, with no concern for the principles necessary to justify them. Bork’s views on free speech suggest how little of modern constitutional jurisprudence might survive that policy if his views dominated the Court. His opinion in Dronenburg shows how little he would need, by way of argument, to justify sweeping what he dislikes away.

For in that case he offered almost no argument, beyond his doctrine of “new rights,” which we have been considering. I quoted earlier his remark that Blackmun’s opinion and the other Supreme Court decisions do not provide sufficient guidance on which sexual freedoms might be “fundamental” to allow lower court judges to apply these decisions to new cases. But judges are able, in every field of the law, to apply words like “reasonable” and “fundamental” by deciding whether some new case is more like or more unlike cases in which such words have been applied in the past. It is disingenuous to suggest that judges are incapable of deciding whether the right to homosexual activity is at least as fundamental as the right to buy contraceptives elsewhere than at druggists.

Bork said that the principle of liberty Dronenburg’s lawyers claimed to be inherent in the past Supreme Court decisions was ridiculous. But he wholly misunderstood that principle.²³ He summarized it as supposing that morality can never be the “basis” for legislation, and then thought he had refuted it by pointing out that much legislation is justified on moral grounds, like civil rights acts and statutes protecting worker safety. The principle on which Dronenburg relied is very different from Bork’s description: it holds that the majority’s moral distaste is not in itself a sufficient reason for preventing people from acting in ways that cause no actual harm to themselves or others. So Bork’s analogies are entirely inapt. Racial discrimination is immoral, and unsafe working conditions intolerable, exactly because of the harm they do cause.

Bork declared, finally, that homosexuality could not fall within constitutionally protected categories “unless any and all private sexual behavior falls within those categories, a conclusion we are unwilling to draw.” Once again he misunderstands the principle in question: it need not be stated in such a way as to include sadism or sexual coercion or abuse of children, for example, all of which do cause harm to others. So in the end his argument is limited only to his regal “unwillingness to draw” a conclusion that might, for all he has shown, be the only conclusion the law permits.

This is the jurisprudence of fiat, not argument. It is sadly consistent with the Republican platform, which calls for the appointment of judges “at all levels of the judiciary” with the proper, that is to say right-wing, views about “traditional family values and the sanctity of innocent human life,” as if only a justice’s personal moral convictions, not his or her arguments of law, really mattered. If justices with that view of their work colonize the Supreme Court, earning their places through decisions like Bork’s, the Court will no longer be what our traditions celebrate, a forum of principle where unpopular minorities can argue for liberty on grounds of right. It will become the Moral Majority’s clubhouse, where the prejudices of the day are called constitutional law.