Opinion, Berkeley Blogs

Vulgar Borkians: The Tea Party and the Judge

By Lawrence Rosenthal

One of the great riddles of the 2009 and 2010 Tea Party heyday was contained in the famous sign that appeared in many of their anti-Obamacare demonstrations: "Government hands off my Medicare."

How could they think that? It's a plain contradiction since, obviously, Medicare is a government program in the first place.

The key to understanding this conundrum is to be found in zero-sum thinking. Tea Partiers are typically older, white, quite conservative, and often happy recipients of Social Security and Medicare benefits. In their view, proposing to grant health insurance to those tens of millions without coverage (who are seen as undeserving) was tantamount to taking that very benefit away from them (the deserving). Benefits are not expandable in zero-sum thinking. They are a fixed sum. The only way to offer existing benefits to a new population is to take them, at least in part, away from those that already possess them. "Government hands off my Medicare" was a cry of dispossession.

But zero-sum thinking in American conservatism goes deeper than disputing spoils. The Tea Party's view about things like benefits is a subset of a more general vein of conservative thought in which liberty itself is seen as a zero-sum commodity.

Which brings us to Robert Bork, who died last week on December 19. Bork was, in effect, the conservative movement's grand legal theorist of the zero-sum view of liberty.

Bork was famous for arguing that the 1964 Civil Rights Act was based on a principle of "unsurpassed ugliness." How did he conclude this? Take public accommodations. The idea that lunch-counter owners could not deny service based on race took away the owners’ freedom to deal only with whom they wished. Giving blacks the right to sit at that counter—expanding their liberty—came at the counter-owners’ expense. The counter owners were dispossessed of their freedom. This view was reiterated in 2010 by Tea Party Republican candidate Rand Paul during his campaign for the U.S. Senate from Kentucky.

Implied in Bork's position on the Civil Rights Act was the equivalence of positive and negative rights. There was nothing inherently superior in the black person's right to be served as compared to the owner's right to deny service. Any judge who would see a superior interest in the right to be served was only relying on personal values and usurping the functions of the legislature, in Bork’s thinking. Any law that would favor one or the other's freedom, whether positive or negative, was playing favorites between claims of equal standing.

So extreme was this view for Bork that during his famous, and failed, 1987 confirmation hearings for a seat on the Supreme Court, under questioning by Illinois Senator Paul Simon, he was forced to carry his concept to the logical conclusion that the judiciary could not rightly call for the abolition of slavery. The freedom to hold slaves, in Borkian principle, enjoys the same protection as the freedom from slavery.

Bork was not an ordinary dogmatist in these zero-sum opinions. In the same hearings he described these views as the basis for his vaunted judicial philosophy of “original intent.” He displayed an almost metaphysical, natural-law insistence that liberties cannot be created or expanded. They could only be “redistributed.” He asserted this was an “arithmetic” and “indisputable” certainty. According to Bork, since every expansion of liberty in one area means taking it away elsewhere, such action calls for value judgments in which no judicial principles of right and wrong pertain.

It may seem a long way from Bork’s lofty calculus of liberty to the Tea Party’s furious demand that others not enjoy the health insurance protection their government assures them. But the Tea Party’s feeling that something theirs was being taken away and given to others was precisely the feeling that Robert Bork was translating into a judicial philosophy. What, finally, is the Tea Partiers’ link to Judge Bork? We might conclude that they are ultimately vulgar Borkians.