In the book he finished shortly before his death, Robert Bork delivered the familiar rhetoric of the right about the evils of unelected judges taking decisions out of the hands of the people and their appointed representatives by overturning laws passed democratically:
“We are now being ruled in some of our most crucial cultural and moral issues by judges who have acquired the power, but certainly not the authority, to take those decisions out of our hands,” he frets in “Saving Justice,” published after the longtime Constitutional authority died last December.
“With each issue it takes out of the hands of the people in order to please the elites, the Supreme Court moves from being what my friend Alex Bickel called ‘the least dangerous branch of government,’ to a place where it can lay fair claim to being the most dangerous,” wrote Bork.
And they really mean that — except, of course, when they don’t. Can one possibly believe that Bork would have objected to the Supreme Court’s ruling in Citizens United, which struck down campaign finance limitations passed by Congress? Or that he would have hesitated for a moment to strike down the health care reform bill upheld by the Supreme Court last year? Or that he would have respected laws allowing assisted suicide or the use of medical marijuana in states that were passed by wide margins in popular referendums?
Bork, like his fellow conservatives, are passionate advocates of judicial restraint and deference to democratic processes when it comes to laws that impede into the private lives of individuals, like laws banning sodomy or the use of contraception. In such cases, they are horrified by the prospect of “black-robed tyrants” overturning the “will of the people.” But if a democratically-passed law restrains the actions of big corporations in almost any way, they transform immediately into “judicial activists” and begin “legislating from the bench,” to borrow two of the vapid catchphrases they love so much. The same is true of federalism, which they support loudly and often and then jettison with all due haste when doing so leads to a result they don’t like.