September 22, 2009

An Appreciation of Scalia and Bork

I have not commented on the debate between Kevin Gutzman and Austin Bramwell on the Constitution because I make no claim to be an expert on the Constitution. Like most non-academic lawyers, my focus is on helping my clients with their practical legal problems, and my outside interests do not include delving into Constitutional history or theory.  But I do want to comment briefly on Prof. Gutzman’s assertion, in his most recent essay, that “Bramwell refers to various tendentious ‘scholars’ and judges whose ‘theories of’ and ‘approaches’ to the Constitution always lead them to the desired outcomes. (Bramwell admires them).’” 

Now, maybe I’ve missed a judge or two, but the two judges I see quoted in the Austin Bramwell essay to which Gutzman is replying are Robert Bork and Antonin Scalia, men who scarcely deserve our scorn.  If Bork is nothing more than a “tendentious judge” who merely uses the Constitution to advance his policy preferences, it is hard to see how we may justly criticize the Senators who voted against confirming him to the Supreme Court.  But I don’t think that’s a very good description of Robert Bork.  Indeed, Bork’s defeat in the Senate was a disaster.  At the very least, Bork would have provided the fifth vote to overturn Roe v Wade, thereby doing more to vindicate federalism, morality, and simple decency than virtually any other single action I can think of.

Nor do I think Gutzman’s description applies to Antonin Scalia, the author of the magnificent dissent in Planned Parenthood v Casey that makes as strong a case against judicial imperialism as has ever been made by a Supreme Court justice.  Takimag readers will also enjoy Scalia’s stinging dissent in Johnson v Transportation Agency, which remains the strongest indictment of affirmative action penned by a Supreme Court justice.

I am not suggesting that Bork and Scalia are perfect.  In fact, I can think of areas where I disagree with each man.  But I think they are honorable jurists, and we would be fortunate indeed if their thinking reguarly commanded a majority on the Supreme Court.


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