The Courts and the Culture Wars

I'm reading Robert Bork's, A Time to Speak: Selected Writings and Arguments, as noted previously. This afternoon I read Bork's essay, "Olympians on the March: The Courts and the Cuture Wars." Once again, I can't share enough how much these essays are resonating with me.

In "Olympians on the March," Bork examines the shift from a legal constitutionalism in the courts to a political advocacy masquerading as jurisprudence. Most of the change came in the 20th century, and the Warren Court was the turning point to a socialization of the law. According to Bork, "As a consequence of the Warren Court's preference for equal results rather than equal justice, it politicized every branch of the law, statutes as well as the Constitution. Ironically, the Court's favored constitutional implement was the clause of the Fourteenth Amendment promising 'equal protection of the laws.'"

The "Olympians" are the educational and social elite. Here's Bork's key passage on this progressive elite:

Judges belong to the class that John O'Sullivan first identified as "Olympians." The political philosopher Kenneth Minogue described the philosophy of this class:

Olympianism is the project of an intellectual
elite that believes that it enjoys superior enlightenment
and that its business is to spread
this benefit to those living on the lower slopes
of human achievement .... Olympianism
burrowed like a parasite into the most powerful
institution of the emerging knowledge
economy - the universities.

From there the infection spread to other culture-shaping institutions, most notably the Supreme Court which was accused, justly in my opinion, with reasoning backwards from desired results to spurious rationales.

Further, check out this passage on the Court's radical cultural rights:

The Supreme Court is enacting a program of radical personal autonomy, indeed moral chaos, piece by piece, creating new and hitherto unsuspected constitutional rights: rights to abortion, homosexual sodomy (and, coming soon, homosexual marriage), freedom from religion in the public square, racial and sexual preferences. None of these is justified by the actual Bill of Rights.

I could easily multiply examples. But the underlying philosophy of the Olympians--if it deserves so dignified a name as "philosophy"--is wonderfully summed up in the famous "mystery passage" that Justice Anthony Kennedy first articulated in an opinion reaffirming the made-up constitutional right to abortion. "These matters," Justice Kennedy wrote for the Court,

involving the most intimate and personal
choices a person may make in a lifetime
[abortion, etc.], choices central to personal
dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define
one's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes
of personhood were they formed under compulsion
of the State. [emphasis added]

Although this passage instantly attracted some measure of the ridicule it deserved, Justice Kennedy chose to repeat it in Lawrence v. Texas (2003), which pretends to discover a constitutional right to homosexual sodomy. What other practices, we may wonder, are now "at the heart of liberty"? Kennedy's aria about "the right to define one's own concept of existence, of meaning," etc., is not simply laughable intellectually; it also tells us something grim about our future, the Court, and a people that supinely accepts such judicial diktats.

While searching for some of Bork's essays online this afternoon, I came across a Reason magazine book review of Bork's "Slouching Towards Gomorrah: Modern Liberalism and American Decline. Reading the piece provides some insight as to why libertarians are wont to form alliances with radical leftists, as we're seeing in the "liberaltarian" rage that's been going around online. If Bork's ideas are seen as "extreme" by some (especially as he apparently calls for censorship in Slouching Towards Gomorrah), there's actually not much a cultural conservative can quibble with, at least, if one's concerned about the very breakdown in radical licentiousness that leftist are determined to spread.