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Ted Kennedy once helped prevent the "borking" of America the Roberts Court has now undertaken... [1]

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Date: 2024-06-19  

The conservative majority that holds sway on the Supreme Court has politicized its rulings with partisan disregard for constitutional doctrine and settled law. Justices Alito and Thomas (Bush I and II} joined by Trump’s 3 appointments in a single term have formed an extremist conservative court majority that is intent on disaffirming fundamental rights that had been recognized by earlier courts. The evolution of the court from one that accommodated moderate opinions and whose justices provided “swing” votes to temper their liberal and conservative colleagues. Since FDR who had appointed 9 justices in his 4 terms, presidents have nominated justices who have tipped the court one way or another according to their politics. Each nominee faced the approval of a Senate under the constitutional provision in Article III to provide “advise and consent” to all federal judicial appointments.

The current composition of the court reminds us of the Reagan nomination of Robert Bork to the bench late in his term. By 1987, Reagan was weakened by scandal and his political lame-duck status. Bork was his third nominee to the court after Sandra Day O’Connor and Antonin Scalia. Bork, if appointed, would tip the balance of the court by replacing a swing voting moderate, Lewis Powell, with Bork who was a right-wing firebrand. Here is a description of Bork’s background from Brittanica:

Bork worked for eight years as an antitrust attorney in the prestigious Chicago-based law firm Kirkland & Ellis. In 1962 he joined the faculty of Yale Law School, where he taught antitrust law and became a noted advocate of the doctrine of originalism (also known as original intent or original understanding), according to which courts should limit their interpretation of the U.S. Constitution to reflect the meaning that its framers intended it to have at the time of its adoption. Soon after his arrival at Yale, Bork also became known for his opposition to proposed federal legislation, later adopted as Title II of the Civil Rights Act of 1964… At the time, Bork viewed the relevant provisions of the act as an unconstitutional infringement of the right to freedom of association. He also famously argued against the notion that the right to privacy is implicit in certain provisions of the Constitution. On that basis, he criticized the Supreme Court’s decisions in Griswold v. State of Connecticut (1965), which found that the right to privacy was violated by a state law that prevented married couples from using contraceptives, and in Roe v. Wade (1973), which held that the right to privacy guaranteed limited access to abortion to individual women. In addition, Bork advanced an unusual position on the scope of the First Amendment’s right to freedom of speech, declaring in a journal article that, in light of the framers’ original intent, only explicitly “political” speech is constitutionally protected. Bork eventually became one of the country’s most prominent critics of liberal jurisprudence, or judicial rulings in support of liberal priorities such as racial desegregation, voting rights, and women’s rights, which he characterized as involving egregious and willfully wrongheaded readings of the Constitution by unabashed judicial activists. — Brittanica.com

Within minutes of Reagan’s announcement of his selection of Bork, Senator Ted Kennedy summed up the Democratic response to the Bork announcement in words that anticipated the present:

Bork was refused the appointment by a vote of 58-42 in the Senate. Six Republicans joined 52 Democrats in rejecting Bork. The Republican anger at the loss was exacerbated by the embarrassment of Reagan’s choice, Daniel Ginsberg. Ginsberg withdrew when his personal use of marijuana was revealed. The third nominee ended the humiliation as Anthony Kennedy was unanimously appointed to the bench and served until he retired in 2018. Donald Trump appointed Brett Kavanaugh as his replacement in a contentious decision of its own as Kavanaugh was accused of rape by Christine Blasey Ford in a riveting nomination hearing that ended with the Republican majority approving the nomination. Being “borked” became a GOP whine whenever judicial appointments didn’t go their way— even as they had been able to fill the highest court with judicial extremists. George H.W. Bush appointed Clarence Thomas, whose personal peccadilloes threatened to derail his appointment, while George W. was able to appoint Samuel Alito and John Roberts as Chief Justice.

The evolution of the recent court owes much of its composition and partisanship to the GOP’s long-range goal of taking over the court and undoing the expansion of rights that bloomed under more liberal, or perhaps better, less partisan courts. The Bork rejection was different for Republicans because, for as much as a judicial appointment rejection might be considered a personal affront, this one was. Kennedy’s immediate response to the Reagan nomination was prescient. Many blamed Bork’s firing of Archibald Cox ending the Saturday Night Massacre debacle that saw Atty. General Elliot Richardson and his deputy William Ruckelshaus resign. Bork was next in line and acceded to Nixon’s demand. But one could argue that Bork was only acting to end a constitutional crisis that culminated with the appointment of Leon Jaworski as special prosecutor and the resignation of Richard Nixon. But Kennedy's rant and the subsequent Senate rejection were more based on Bork’s public record as an ideologue.

If taken at his word, Kennedy was stating the Democrats’ position that Bork’s radical positions on Free Speech, Roe v Wade, and privacy rights, along with his originalist’s position on interpreting the Constitution were disqualifying. There were no personal indiscretions to expose and it would be hard to argue that Bork was not professionally qualified. He owned a brilliant judicial mind. Bork was rebuffed because his ideas were deemed too extreme for the highest court. Thirty-seven years later Kennedy’s wisdom has proven true. While none of the court’s majority have the judicial bonafides of Robert Bork, who passed away in 2012, they all share his extreme views. As Chief Justice John Roberts leads the court, his power to dampen its extreme views and its attacks on stare decisis have been abandoned by Thomas and Alito— neither of whom are the intellectual equals of Bork.

Had Bork joined fellow originalist Antonin Scalia in 1987 the direction of the court would likely have been similar to what has transpired today but with less of an impact. In the period 1986 to 1992, Democrats held both houses of Congress then lost that momentum until the Obama presidency. During this period partisanship has grown. The GOP under Trump had finally achieved the judicial temperament of Bork and his rejection of post-New Deal court decisions but without his judicial mind. Their opinions take a hatchet to the Constitution and even violate the sentiments of most originalists. While one cannot predict how Bork would have affected the court had he been appointed, it can be assumed that Alito and Thomas as the new conservative core are not honest in their assault on the law. They are partisan hacks.

Republican cries that Bork had been treated unfairly can be fairly discounted by the fact that eight of the most recent appointments to the court were made by Republican presidents.

If there is a reasonable explanation for the discrepancy other than luck, the answer could lie in the conservative reaction to landmark civil rights decision passed by the Warren Court. From Brown v Board to the sweeping civil rights decisions of the 1960s, the Warren Court stands as the antithesis of the current court. The liberal bent of that court, however, belies the fact that 5 of its members were appointed by Dwight D. Eisenhower, hardly a liberal icon. Warren was plucked from the Republican governorship of California by Ike to be Chief Justice. In 1942, Warren was Tom Dewey’s Vice Presidential running mate and he ran for the Republican nomination for president in 1953. The court that defined the liberal era and gave us “one man, one vote”, school desegregation, conferred Miranda rights, and ended publicly sanctioned prayer in schools was awash with GOP appointees.

Ted Kennedy could rightly be acknowledged for having protected us from the intellectually dishonest judicial rulings that Robert Bork would have promoted had he not been rebuffed. In an exchange between the two at Bork’s confirmation hearing Kennedy— one of the hardest-working Senators of his day— framed the case against Bork:

KENNEDY: . . .On numerous occasions over the last 16 years, Mr. Bork, you've suggested the equal protection clause of the Constitution does not ban discrimination against women. Now, you're suggesting the Supreme Court should apply the same lax standards to sex discrimination that applies to challenges to air pollution ordinances or economic regulations. Equal Rights Amendment... You've also disapproved the equal rights amendment. And finally, you also suggested, in a 1985 opinion, that the Civil Rights Act offers little if any protection against any one of the ugliest forms of gender discrimination -individual sexual harassment on the job. BORK: Oh, no. KENNEDY: We've made great progress in the country in the last 20 years in giving women equal status under law. And I think the controversy has largely been settled, but you would have the Supreme Court, evidently, roll back the clock and reopen old wounds. — NYTimes Archives

The borking of America has begun with a court that has bartered judgment for partisanship; ethics for dishonor. The recent public disclosures of the injudicious behavior of justices Alito and Thomas have yet to play out on this court that has yet to rule on the preposterous claim by the convicted ex-president that he deserves total immunity from prosecution for acts he has committed while in office and after his defeat. There can be no constitutional claim to back such an assertion, but this court has proven to be constitutionally illiterate.

It is as if we can hear the echoes from the grave of the deceased giant of the Senate whispering in our collective ear “...told you so!”

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