Robert Bork, Judicial Creativity, and Judicial Subjectivity
Judge Robert Bork inveighed against courts that decided on the basis of their own values. Judges, he said, must employ only those principles that they could derive, define, and apply neutrally. By neutrally, he meant without bringing in their own conception of the good. Yet he also endorsed judicial elaboration of doctrines that would keep the Constitution up with the times and sparred with his then-colleague Antonin Scalia on that issue. Bork thought that judges could be objective and creative at the same time. Moreover, he was well aware that judges face interpretive difficulties even when they are not self-consciously making their own contribution. He believed that interpretive uncertainty could be resolved without judicial value choice and had to be if the courts were to retain their legitimacy. Recent scholarship has explored possible responses to legal indeterminacy. One body of work, now often going under the name of "construction," asks what judges and other interpreters do and should do in order to select among plausible meanings. Another line of scholarship deals with judge-made doctrine, especially constitutional doctrine. This Essay briefly discusses Bork's thinking on those problems, and comments on the current issues in light of that discussion. The first issue I will discuss is uncertainty as to the meaning of an authoritative text. To say that the highest norm in this country is the Constitution's text is only the beginning of the analysis. For example, an interpreter seeking the original semantic meaning of a part of the Constitution must deal with the possibility that at the relevant time more than one meaning was in use by well-informed speakers of English. Sophisticated language users may have had different concepts that went by that name, each coherent and related to the others, but nevertheless distinct.