Borking and The Court

I actually agree with two points that Ross Douthat makes here. First, I think that there’s a tendency to assume that Roe‘s popular support made its upholding inevitable, but this really isn’t the case. If Reagan had appointed Bork and Scalia in reverse order, for example, Roe would have been overturned. Although most sophisticated observers understand that the Supreme Court is better understood as an adjunct to national governing coalitions than a stalwart protector of unpopular minorities, it’s easy to push this too far; the Court wouldn’t have been prevented from overturning Roe any more than the Warren Court was prevented from issuing Everson and Miranda. (Indeed, as all three examples suggest it’s entirely possible for positions to be broadly consistent with current elite governing coalitions and be unpopular among the public at large.) Second, he is of course right that Alito and Roberts are doctrinaire conservatives who will never find an abortion regulation unconstitutional, although their fake “minimalism” may mean that even with a fifth vote we’ll see the complete gutting rather than the explicit overturning of Roe. (Of course, at this late date nobody but Ann Althouse could think otherwise.)

On the other hand, we have the tired claim about of a “shameful-but-effective Democratic smear campaign against Robert Bork.” Obviously, the Senate being a political body, criticisms of Bork were not expressed in the tones of an academic seminar. But the core of the case against Bork was that he 1)entirely rejected any implicit right of privacy, meaning that the state not only had the authority to pass arbitrarily enforced laws requiring a woman to carry her pregnancy to term but also to pass arbitrarily enforced laws preventing people from using contraception, 2)he had a consistently awful record on civil rights including public claims that the Civil Rights Act was unconstitutional and hostility to claims of gender equality, and 3)took an exceptionally narrow view of free speech rights. This campaign was effective because it was accurate — there were at the time enough moderate Republicans to oppose his views on privacy and no Southern Democratic Senator (given that they required near unanimous black support to be competitive) could have supported someone with Bork’s record on civil rights. Some of these issues have become less important over time — conservatives have largely adopted libertarian positions on issue #3, and many reactionary nominees are now young enough not to have contemporaneously opposed the Civil Rights Act. On issue #1, however, justices like Roberts and Alito are easier to confirm than Bork not because their positions are more popular but because the lesson they learned from Bork is to simply refuse to state their position explicitly. Hence the high comedy of Republicans who had admired Alito for being a doctrinaire conservative suddenly reacting with outrage against those pointing out the obvious fact that he held very conservative positions on legal issues as soon as he was nominated. This silliness, of course, could stop as soon as he was safely on the Court. This kabuki does, however, make “Borking” more difficult (or, as the case with Thomas, be reflected through discussions of marginally relevant personal issues.) This is not, however, a good thing.