The Borked court

National Review, July 20, 1992

THE Supreme Court's deeply disappointing decisions on school prayer and abortion are notable victories for Senator Joseph Biden. Thanks to his efforts as Chairman of the Senate Judiciary Committee, the appointment of Robert Bork to the High Court was defeated in 1987, and Anthony Kennedy was later appointed in his stead. Three years later, faced with the prospect of the Committee "Borking" candidates who had taken clear positions on constitutional issues of the time, President Bush was compelled to nominate a candidate who avoided expressing any views whatsoever, David Souter. While Justices Kennedy and Souter have proven generally to be conservative-minded members of the bench, they have also become object lessons in why the difference between the most distinguished nominees to the bench and those of more modest credentials is an important one.

Joined by Justice Sandra O'Connor, herself an object lesson in the subtly debilitating impact of affirmative action, they form the critical swing vote on the Supreme Court. None of them has shown any stomach for departing significantly from the precedents of the Warren and Burger Courts. In the school-prayer decision, the three Justices helped form a 5 to 4 majority for the proposition that virtually all forms of reverence to God at school graduation ceremonies were barred by the First Amendment of the Constitution. Not Catholic reverence or Baptist reverence, but reverence whose strongest terms were "0 God, we are grateful to You for having endowed us with the capacity for learning, which we have celebrated at this joyous commencement."

To Justices Kennedy, Souter, and O'Connor, this constituted psychological "coercion" of non-believing students and their families to support and participate in religion. Such individuals were "pressured" into attending the ceremonies by virtue of the importance of the occasion. Justice Souter helpfully authored a separate opinion in which he joined forces with Hugo Black and William Douglas to argue that the First Amendment did not merely prohibit the state from preferring some religions to others but actually created barriers between the state and even the most remote support of religious values.

The majority opinion, while perhaps forming the foundation for some future multicultural and humanist Constitution, draws little upon the thinking of those who drafted our present Constitution. The loss of secular prayer on public occasions is not only the loss of yet one more American tradition but, as Justice Scalia observes, the loss of a "unifying mechanism" in American life. As with the loss of other forms of school prayer over the past three decades, the impact of the latest loss will be subtle but it will be felt everywhere around us.

In the abortion decision, the three Justices perpetuated the current chaos by adopting (for the time being) Justice O'Connor's thinking (which she concedes has been inconsistent over time) that the states may legislate over some aspects of abortion but may not "unduly burden" the abortion decision. With this helpful guidance, the Court concluded that the state may require some manner of parental consent (so long as some manner of judicial consent is also available if parental consent is not forthcoming); it may require some manner of informed consent by women; but it may not require most forms of spousal consent. All of this was divined, of course, by careful scrutiny of the text and history of the document bequeathed to us by James Madison and his colleagues at Philadelphia.

Compounding this is the nakedly political analysis of the three Justices in finding that Roe v. Wade had acquired a "rare precedential force" that could be overturned only at the cost of "profound and unnecessary damage to the Court's legitimacy." Justice Sourer, speaking from the bench, said further that to overturn Roe would not be seen as "anything but a surrender to political pressure." We would have thought (and do think) precisely the opposite.

These were cowardly judgments by Justices of some ability but feeble character exactly what one would expect from the process that selected them.