Bork Gives the Majority Wide Rein : Its Views, However Arbitrary, Usually Carry the Day

President Reagan is asking the Senate to consider Robert H. Bork, his nominee for the Supreme Court, on the basis of his qualifications, not his ideology. This is like asking that we judge a man by his character, not by his actions. One stems from the other, so the two are inseparable. The 30-year record of Bork’s decisions and writings provide us with such a clear pattern of his philosophy and fundamental consistency as to leave little doubt what the direction of his rulings would be.

The prevailing, never-changing theme buttressing Bork’s judicial philosophy is that human values are arbitrary. The U.S. Constitution was framed by men who, just like legislators today, disagreed among themselves and clung to different and opposing human values. Hence, in Bork’s view, it is hard to believe that the result of the bargaining in Philadelphia in 1787 produced anything but an equally arbitrary product.

The reason to adhere to the Constitution as literally as possible in the interpretation and application of our laws, in preference to some other scheme, is simply that we need something to prevent judges from tyrannizing the rest of us with their arbitrary values, and this is what we have. The Constitution preempted and protected certain areas from future arbitrary action by the majority, and these are therefore inviolable. In all other aspects of governance, Bork believes, the wishes of the majority, arbitrarily arrived at and expressed as they may be, should prevail, since “there is no principled way to prefer any claimed human value to any other.”

Throughout his career Bork has specialized in property, commercial and regulatory issues, particularly antitrust matters. When human interests have clashed with those of property or government, his predilection has been to place the burden of proof on the petitioner, usually representing the human interest. With Bork construing constitutional protection narrowly, human-rights advocates have not fared well. Thus, in a 1963 article in the New Republic, opposing a central provision of the 1964 Civil Rights Act requiring public hotels, motels, restaurants and movie theaters to serve blacks and whites alike, he called Congress’ imposition of its moral values on the operators of these establishments an idea of “unsurpassed ugliness.”

He has remained a firm adherent of the Chicago School of Economics antitrust theory that he helped popularize and that posits the ability of laissez-faire , with minimal governmental regulation, to provide maximum “consumer want satisfaction.” This idea is epitomized in a Latin phrase, De gustibus non est disputandum-- taste cannot be debated. Bork applies this aphorism equally to individual freedom, leading him to conclude that courts can never create freedom when they support an individual liberty against the majority, because freedom “is merely shifted from a larger group to a smaller group.”

All advocates for change in governmental regulations are also equivalent. No petitioner can claim moral superiority over another. It is impossible, according to Bork, to distinguish a married couple’s desire “to have sexual relations without fear of unwanted children” from an electric utility’s preference to be free from the intrusion of a pollution ordinance.

At one time Bork’s belief in the capriciousness of value judgments placed him in the libertarian camp; he thought that the Constitution embodies significant restraints on majoritarian government to impose its arbitrary choices on individual rights and freedom of choice. But in the years between 1963 and 1971 his application of that theory shifted, in effect, away from constitutional protection and toward preeminent power for the majority, because he came to favor extremely narrow interpretation of the Constitution--the specific clauses should be read literally, and not an inch beyond. Thus in 1969 he found justifiable the ruling in the 1965 case of Griswold vs. Connecticut invalidating a ban on the use of birth control by a married couple, but in 1971 he declared it “intellectually empty.” In 1981 he vigorously opposed the Supreme Court decision in Roe vs. Wade, holding abortion to be an individual choice, because he could find no constitutional basis for removing the decision-making power from majority rule on the state level. He thinks the idea that the Constitution provides any protection for homosexuals absurd. In a 1971 article he held that First Amendment protection is restricted “explicitly” to political speech--not literary, scientific or any other kind. He has rejected the view, embraced by the current court, that the 14th Amendment provides some heightened protection against discrimination based on sex.

In sum, then, Bork holds that the majority should hold sway over the minority, whatever its numbers, and should simultaneously be protected against the imposition of a judge’s (presumptively arbitrary) assessment and judgment of its actions. Courts can act only when a clearly established “neutral principle,” found in the Constitution to restrain the majority, is applicable. In practical terms this would mean, according to Bork, that the majority is free to outlaw whatever sexual conduct it deems fit, and these prohibitions could be enforced everywhere but in the home or another place (such as a hotel room) where a person’s reasonable expectation of privacy is protected by the Fourth Amendment.

Clearly the philosophy that Bork brings to his nomination hearing, suppressing the validity of qualitative judgment while elevating quantitative, is quite extraordinary in the history of Supreme Court nominees. Whether a pivotal court seat should go to a judge, no matter of what upstanding character or juridical ability, who views the decision-making process as being irrational and the Constitution as being without animating spirit is a question that the Senate will have to answer.