Bork Opinions: He’s Not Predictably Conservative

Although Robert H. Bork, President Reagan’s latest nominee to the Supreme Court, was hailed by admirers and denounced by critics Wednesday as a “conservative,” his opinions reveal a less predictable judge than the label suggests.

As a member since 1982 of the U.S. Circuit Court for the District of Columbia, Bork has proved to be a judge who follows the law and legal precedent--not his personal preferences--in arriving at his opinions.

Thus he ruled against conservative students who wanted to picket outside the embassies of Nicaragua and the Soviet Union. And he decided in favor of an artist who sought to put a poster mocking Reagan in the Washington subways.

In backing the rights of a free press, he went further than his liberal colleagues. Libel suits that could stifle vigorous journalism, he suggested, should be thrown out of court.

And even in dismissing a suit filed by a sailor who sued the Navy for dismissing him because he was gay, he delivered an offhand defense of the Supreme Court decision legalizing abortion. Though the Constitution’s implied right to privacy does not cover homosexuality, he wrote, it “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In the opinion, Bork did not say whether he meant only to describe high court decisions that, as a lower-court judge, he was bound to follow or whether he was, in fact, endorsing the right to privacy as extending to the abortion issue.

A few years earlier, in testimony before a Senate committee, he described the high court’s abortion decision as “an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.”

Certainly many of Bork’s decisions are easily recognizable as conservative. He has concluded that handicapped persons have no civil right to special access at airports, that a supervisor charged with sexual harassment should have an opportunity to prove that his female accuser invited his attentions, and that the Japanese-Americans who were interned during World War II have no right to sue today.

Bork also frequently has written decisions that used procedural rules to bar access to the courts for groups ranging from advocates for the homeless to members of Congress protesting Administration policies.

As a guiding principle, Bork has held to the view that judges must follow the “original intent” of the Constitution. They should vigorously uphold such constitutional guarantees as a free press, he has said, but they have no authority to go beyond those written rights.

Judges as ‘Platonic Guardians’

Judges who see themselves as “platonic guardians” with the power to strike down laws allowing the death penalty or prohibiting sodomy can lead to a “tyranny of the minority,” he said in a 1985 speech.

Justice Department spokesman Terry Eastland said Bork is admired because of “how he decides and not what he decides. The issue is whether the judge follows the terms of the law, no matter what the outcome might be.”

His critics are not comforted. They believe that Bork, along with other Reagan appointees to the high court, has been selected to roll back the liberal rulings of the 1960s and 1970s. “Well-established law could overnight be substantially eroded or overturned,” said Ralph G. Neas, executive director of the Leadership Conference on Civil Rights.

Already, however, Justice Antonin Scalia, whom Reagan named to the court a year ago, has pleasantly surprised liberals by voting to uphold a California law granting pregnant women a disability leave and by declaring that police have no right to carry out broad searches in a suspect’s apartment.

Stance Not Always Predictable

Similarly, Bork, to judge by his appeals court rulings, may not be the faithful right-wing vote that conservatives expect.

--In a case decided by Bork’s appeals court last year, the Young Conservative Alliance of America contended that its freedom of speech included a right to carry placards in front of the Nicaraguan and Soviet embassies, in defiance of a District of Columbia law requiring that picketers be kept 500 feet away.

Bork, in a lengthy opinion quoting both international law and the framers of the Constitution, said the need to protect the “peace and dignity” of foreign ambassadors outweighed the right to carry placards near the embassy gates.

“Shielding (U.S.) government officials from public protest is incompatible with our democratic structure, which relies on public criticism as a means of promoting responsible government,” Bork observed. “Foreign ambassadors, in contrast, have no similar obligation to be accessible to public attack.”

--An artist said his right to free speech entitled him to buy advertising space in the Washington subway system for a poster entitled, “Tired of the Jelly Bean Republic?” Although subway officials had allowed politically oriented posters before, they said this poster was “deceptive and distorted” because of a transposed photo of a laughing Reagan facing a crowd of poor persons.

A lower federal court sided with the subway officials, but Bork, writing for the appeals court, ruled in 1984 in favor of the artist. The poster, he wrote, is “plainly political. Subject to a limited number of exceptions--most notably reasonable time, place and manners regulations--political speech may not constitutionally be restricted in a public forum.”

Further, he added, “no reasonable person could think this a photograph of an actual meeting.” Judges need not “indulge the lowest common denominator of the populace” in deciding whether the poster was deceptive.

--In dismissing the gay sailor’s suit against the Navy in 1985, Bork wrote: “We can find no constitutional right to engage in homosexual conduct, and . . . as judges we have no warrant to create one.” Last year the Supreme Court adopted the same reasoning in dismissing a challenge to a Georgia anti-sodomy law.

In the same opinion, Bork reviewed past Supreme Court rulings on the right to privacy and explained why this included a woman’s right to an abortion. “The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent,” he said.

The gay sailor asserted a similar right. In ruling against him, Bork said the abortion precedent “should not lead (courts) to repeat the process at will.”

--In 1984, Bork’s appeals court threw out a libel suit by a Marxist professor against newspaper columnists Rowland Evans and Robert Novak. It concluded that their derogatory comments about the professor were shielded because they represented the columnists’ opinion.

In a lengthy concurring opinion, Bork said he would go further and dismiss the suit regardless of whether the comments were fact or opinion.

“In the past few years, a remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self-censorship on the press which can effectively inhibit debate and criticism as would overt governmental regulation,” Bork wrote. Since the First Amendment was intended to protect political debate, even when it becomes “rough and personal,” judges should not send such cases to juries.

Scalia, then a colleague of Bork on the appeals court, disagreed and voted in favor of the professor.

--Bork dissented in 1985 when the D.C. appeals court ruled that airlines must comply with federal civil rights rules for handicapped persons because airports get federal funds.

“That idea has great potential,” Bork wrote mockingly. Truckers use highways, and so they are “recipients” of federal funds. So are electric companies, because they use dams for water power. Farmers who rely on the National Weather Service must be covered by the federal civil rights rules for the handicapped, he said. Even lawyers, who could not do business without federal courts, must be covered.

Last year, the Supreme Court sided with Bork’s dissent and overturned the appeals court ruling.