Marching on Constitution Avenue: Public Protest and the Court
Authors: Nagel Robert F 
Published: October 2023

Most legal theorists, of course, would deny that Robert Bork’s intellectual instincts and style resemble theirs and that this similarity was an important, legitimate reason for keeping him from the Supreme Court. However, in at least one respect, Bork and his critics are undeniably alike. To the extent that they can influence the content of the dialogue that formed the public aspect of the confirmation process, Bork, Tribe, and most other academics encourage the jurisprudential and doctrinal focus that I criticized in the last chapter. Bork’s complaint about the process is that it became too political, and Dworkin’s defense is that the Judiciary Committee in fact conducted an ‘extended seminar.’ Here, at least, is common ground on what confirmation hearings should be. This agreement is remarkable because, while our constitutional system contemplates considerable insulation for federal judges, the nomination and confirmation provisions explicitly provide the opportunity for political influence. The belief that even this opportunity should be utilized as a seminar suggests how deep the consensus is within the mainstream about the primacy of intellect in constitutional interpretation. It follows powerfully that the irrationality and emotionality of politics should be excluded from the decisionmaking of judges after they are appointed. Near the beginning of The Tempting of America, Bork appealed to this consensus by evoking a ‘disturbing’ image: 56 Judicial Power and American Character the legal force of that amendment arises from the extraordinary nature of the public debate, from the transformative power of focused and inspired public opinion. One problem with the distinction based on informal authority is that it is likely to be wildly inaccurate. Debate in the ABA may be full and thoughtful or it may be posed or even fraudulent; a single letter may reflect a foolish impulse or the most careful internal moral dialogue. Moreover, the same decisionmaking process can be complex enough to justify very different characterizations. Ackerman emphasizes how the Civil War amendments resulted from deep intellectual and moral deliberations, but they also resulted from (as he acknowledges) brute military and political force. To shift the example a great deal, law review articles might be given low weight because they are typically written by cloistered eccentrics and edited by inexperienced students, but they also can be characterized as the product of a focused, thoughtful collegial discourse. Given the room for error and choice in characterization, emphasis on informal authority is treacherous. To some degree, it inevitably reflects judgments about how correct, not how deliberative, a form of political pressure is.Justice Blackmun, being only human, is inclined to reject the informal authority of state legislatures that oppose his conclusions about abortion; he sees their decisions, like armed resistance to desegregation, as illegitimate expressions of emotion and hostility. Then again, it would be only natural for him to welcome supportive demonstrations by advocates of freedom of choice. Legalism, Realism, and Edwin Meese’s Heresy The confused and ambivalent state of our attitudes toward political pressure on the courts was vividly captured by the vociferous reaction to Attorney General Edwin Meese’s notorious speech, ‘The Law of the Constitution,’ which he delivered in the fall of 1986.