- The Washington Times - Monday, September 15, 2003

Coercing Virtue: The Worldwide Rule of Judges

by Robert H. Bork

AEI Press, 161 pages $25

The U.S. Supreme Court’s discovery this summer of a constitutional right to the enjoyment of sodomy can have surprised only the very, very easily surprised. Less surprised than most, we have to assume, was Robert H. Bork, who understands the high court’s philosophical premises better than almost anyone else thinking and writing about the interplay of law and culture.

Mr. Bork has pretty well figured out what’s coming at us down the pike whenever the court takes up a case involving claims to new rights. The middle-class majority, with its old-fashioned norms and moral commitments, is likely to get clobbered — for reasons similar to those adduced by the court majority in the sodomy case, Lawrence vs. Texas.

Just as Mr. Bork makes plain in this terse, telling literary assault on judicial imperialism, judges all over the Western world have joined the cultural war on the side of the left. They have indeed more than joined it. On particular fronts the courts have taken command. Judicial activism, on Mr. Bork’s showing, has subverted the rule of law.

“If we do not understand the worldwide corruption of the judicial function,” he writes, “we do not comprehend the full scope of the political revolution that is overtaking the West. The political revolution in Western nations is the gradual but unceasing replacement of government by elected officials with government by appointed judges …

“The political revolution brings with it a cultural revolution. In reading the opinions of many judges, it is apparent that they view their mission as preserving civilization from a barbarian majority motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like.” What the courts are substituting for old-fashioned moralities is “cultural socialism.”

This is stout stuff, and the reader may rely on Mr. Bork — a trenchant, unsentimental analyst — to produce the evidence. Mr. Bork, who is presently an American Enterprise Institute senior fellow, delivered his manuscript prior to the court’s June 2003 onslaught against opposition to gay rights and that which is pleasantly known as “affirmative action.” If anything, the two cases render the appearance of “Coercing Virtue” all the more timely, as showing what the court was up to and how it happened.

His second chapter, on the growing tendency of American courts to reason from international law as well as the Constitution, has a terrible relevancy in the sodomy case. Writing for the majority in Lawrence, Justice Anthony Kennedy — who ended up filling the vacant Supreme Court seat for which Mr. Bork was rejected — declared: “The right [that] petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.” As if international acceptance of a thing — any kind of thing — circumscribed the right of an American state to reach different conclusions.

Mr. Bork’s chapter on international law, and the solicitude paid it by American judges, is perhaps the freshest, most interesting excursion on which he takes his readers (albeit he has addressed the matter before). His chapter on the Israeli Supreme Court’s peculiarly advanced form of judicial imperialism is especially chilling. The court’s philosophy, and that of its chief justice, Aharon Barak, Mr. Bork reports, is that “there is no area of Israeli life that the court may not govern.” An acquiescent, or perhaps grievously distracted, citizenry lets the court get away with it.

Another country that comes in for rebuke is Canada. In the 20 years since our neighbor to the north adopted a Charter of Rights and Freedoms, the Canadian Supreme Court has made judicial review a staple of its repertory.

Obviously this means making up for a lot of time, and that’s happening. The Canadian Supreme Court, in abortion cases, has declined to extend to unborn life the charter’s extensive — you might suppose — protections.

What Mr. Bork calls Canada’s “judicial normalization of homosexuality” has proceeded in the manner it may proceed here in these post-Lawrence vs. Texas times. One Canadian Supreme Court justice had the nerve to assert that her tribunal, taking the slack left by “a general failure of the political process,” found itself leading society toward recognition of same-sex partnerships. (And kindly don’t step on our robe hems, you middle-class cave dwellers.)

Americans contemplating the post-Lawrence world will find “Coercing Virtue” about as timely as a book ever gets — and as alarming. Mr. Bork has no constitutional remedies to suggest. Except for the implied message to his intended and, one may hope, considerable audience: Wake up.

William Murchison is Radford Distinguished Professor of Journalism at Baylor University.

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