Yes, It’s Politics, So Liberals Ought to Storm the Court

<i> Robert W. Benson is a professor of law at Loyola Law School, Los Angeles. </i>

Suddenly, with the nomination of Robert H. Bork, a reactionary with an impressive scholarly record, to succeed Supreme Court Justice Lewis F. Powell Jr., we are in for a season of fairy tales from the lawyers again. Greatest among these is “The Tale That Law Is Found, Not Made.” A corollary to it is “The Tale That Judges Can Be Ideologically Neutral.” Those involved in selecting the next justice will invoke these tales with all the piety of a country preacher. Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee that will review the President’s nomination of Bork, has already admonished: “The scales of justice should not be tipped by ideological biases. I will resist any efforts by this Administration to . . . . impose an ideological agenda upon our jurisprudence.” Never to be outpreached, the President will extol Bork as a lawyer’s lawyer steeped in the credentials of the craft and dedicated to upholding the rule of law as it is found in the Constitution.

We may expect that when the nominee appears before the Senate he will solemnly pledge to put aside the political philosophy by which he has lived and that in fact secured him the nomination. He will then refuse to answer questions about his views on any of the important legal issues of the day, on the ground that it would be improper for him to “prejudge” any case that may come before the Supreme Court.

Even Senate liberals who have spent their political careers battling the philosophy that he stands for will vote to confirm him, explaining to their constituents that they didn’t cast their votes for the man but for the Rule of Law: “The Tale That Law Is Found, Not Made,” and its corollaries. Liberal Sen. Biden has shown the way. Last year, speculating that President Reagan’ nominee might be Bork, Biden said: “I’d have to vote for him.”


It’s a curious charade, this obeisance to false tales by liberal and conservative politicians alike. Every barber and taxi driver in the country knows that the lawyers’ tales are nonsense. Newspaper editors certainly know it. Without an hour of instruction in the mysteries of legal science, editors routinely and with fair accuracy predict the outcome of Supreme Court cases. It’s easier than handicapping horses, since the only major variables are the political history of the issue and the ideologies of the current justices.

The lawyers, if you get beyond their professional nostalgia for the tales, will admit all this. Our first chief justice, John Marshall, who served with the fastidious Justice Joseph Story, is said to have quipped immediately after the attorneys in one case had ended their arguments: “Judgment for the plaintiff. Justice Story will provide the authorities.” What Marshall was acknowledging is that legal authorities--the words of the Constitution, intentions of the framers and case precedents--are always vague and protean enough to support any result the judge wants to reach.

Even the facts of cases provide little constraint. Our departing Justice Powell, a reputed “Virginia gentleman,” once gave a particularly cynical lesson in the way legal technicians deal with facts. In the case of Ingraham vs. Wright, he held that school officials didn’t have to give school kids a chance to explain their side of the story before being paddled, even though the plaintiff in the case had been swatted so severely that he was out of school under medical attention for 11 days. But in Goss vs. Lopez, decided a few years before, the Supreme Court had said that students have a right to a hearing before being suspended for more than 10 days. In his original opinion released from the Supreme Court print shop, Powell mentioned the 11 days. Then, no doubt realizing the incongruity of saying that a student can’t be suspended for more than 10 days without a hearing but can be hit hard enough to keep him out for 11, Powell revised the official version of the opinion, changing the “11” to “several.”

In short, legal authorities are not like straitjackets that constrain judicial action. They are like boxes of artists’ materials with which judges paint pictures of our political and social realities. Bork’s is a political nomination, and if appointed he will influence the fate of the major political battles of our time. Citizens concerned with racism, women’s rights, the environment and other issues looming before the court ought to create a storm over this nomination. Senate Democrats should use the political power for which they were elected to attempt to delay the appointment until after Reagan leaves office. Members of the Judiciary Committee should in any event insist that Bork take a philosophical position on specific constitutional issues and should cast their votes accordingly.

None of this amounts to “politicizing the court.” It amounts to seeing the court, without fairy tales, as the political institution that it unavoidably is.