BEHIND THE BITTER debate over the nomination of Robert Bork to the Supreme Court lies a crisis in the law. As members of both the legal left and right have been claiming for a decade, and as the current clash of their opposing views affirms, a longstanding consensus about the proper method for interpreting the Constitution has broken down.
There have been other periods when the consensus in American law was fractured, and they have sometimes led to results that are now acclaimed -- most notably the 1954 ruling in Brown v. Board of Education that segregation in public schools was unconstitutional. But in the current situation, the right is venting deep frustration built up over a generation and has provoked a response from the left that, in turn, has led both sides to anger and incivility. All this encourages, and sometimes amounts to, disrespect for the law itself.
The breakdown of legal consensus has also pushed the right into an activism of reaction, even as it deplores the judicial activism of the left. In 1985, Charles Fried, who is now the Reagan administration's solicitor general, said at a seminar of the Manhattan Institute for Policy Research, "I think by now there is a large measure of agreement that many significant, yet misguided policy trends developed in the law during the mid-1960s." Fried said that "growing institutional paralysis -- a kind of celebration of self-hatred for national values and institutions -- was fed by the emergence of what many have called the 'new class,' a class in which lawyers and judges played a large role." To Fried, judges were among the worst offenders. Judicial activism, he said another time, represented "an attitude" that led to "lawlessness."
Fried came to Washington, first as deputy solicitor general and then as solicitor general, "to do something about this terrible drift." During this century the post he assumed has, perhaps, best represented the American commitment to the rule of law. The Supreme Court justices count on the solicitor general to look beyond the government's narrow interests, to help guide them to the right result in each case and to pay close attention to the case's impact on the law.
From the start, the Reagan administration has put heavy pressure on the solicitor general's office to advance the president's agenda. As the first Reagan solicitor, Rex Lee, put it after he was hounded from office, "There has been this notion that my job is to press the administration's policies at every turn and announce true conservative principles through the press of my briefs. It is not. I'm the solicitor general, not the pamphleteer general."
In the 1985 Supreme Court term, Fried, whose legal scholarship has won him a reputation for polish and verve, shocked parts of the legal world by spurning standard practices of legal reasoning to try for results in a large number of Reagan agenda cases. For example, in an important 1982 voting-rights case, the Supreme Court found that the solicitor general had misrepresented legislative history and had taken one sentence out of context from a lower-court opinion in order to justify the government's position.
The left has its own critique about what has happened in the law during the past generation, and why the transformation of the solicitor general's role was predictable. The Critical Legal Studies movement argues that the law is ultimately defined less by abstract principles than by the political and moral views of judges and lawyers who apply and interpret those principles.
Ironically, by their disregard for settled law and practice, the lawyers on the right who most hate C.L.S. thinking now provide its best supporting evidence. So does the descent of the debate about the Bork Supreme Court nomination into almost pure politics. While both sides cite high principles to argue why Robert Bork is right or wrong for the court, the lack of a mainstream view on constitutional law means that politics are the main grounds on which the conflicting sides actually contend.
The inability of scholars and judges to articulate legal principles that clearly transcend politics has tended to reduce respect for the law as a vehicle for solving social problems and to encourage many Americans to believe that they, too, are constitutional lawyers able to decide the day's hard cases. According to a 1986 NBC News poll, a majority of Americans even think that the chief justice of the United States should be elected, overlooking the value of having the nation's highest judge removed from politics.
In the Reagan years, the president himself has encouraged this view of the law. While the president's responsibility as chief executive sometimes may require him to articulate why he views the law as he does, Reagan's support for a long list of actions can be read as promoting disrespect for settled law, as expressed in statutes or expounded by the Supreme Court. For example, he backed tax exemptions for segregated schools in the Bob Jones case, endorsed an extremely narrow reading of court decisions in favor of affirmative action and applauded his administration's call for the overturning of Roe v. Wade only two years after the landmark decision supporting a constitutional right to abortion was strongly reaffirmed.
A powerful signal about the Reagan outlook came from Attorney General Edwin Meese, when he lectured in 1986 about the dangers of submitting to government by judiciary. To the amazement of many legal observers, Meese declared that the Supreme Court's interpretations of the Constitution do "not establish a 'supreme law of the land.'" In effect, he invented a new axiom of constitutional law: If the Supreme Court hands down a decision with which the executive disagrees, then officials in the executive branch should simply treat their own views as authoritative.
American law has survived previous periods of bitter and widespread antagonism about it -- the long bleak period of law before and after the Civil War, for example, and the conservative blockage of New Deal legislation in the 1930s. But following each crisis in the law, leading scholars and judges have set about rebuilding legal consensus, as is now required. The American system of government is set apart by a need for the consent of the governed; the law is the compact between the people and their representatives. The Supreme Court must forge consensus as it interprets the laws made by Congress and enforced by the executive branch. If not, the court encourages disrespect for the law.
The current problem reaches far beyond the Supreme Court. Practices of the Reagan Justice Department flabbergast longtime observers of the department; the important federal Court of Appeals in Washington has been transformed into liberal and conservative factions that nastily go at each other; judges, lawyers and scholars increasingly treat the law as a forum for clever debate, instead of as a tool for solving problems in human affairs, using accusatory, misleading language that, as each side sees the other, divides the legal world between legal terrorists on the right and nihilists on the left.
Until the profession begins to heal its divisions, it will continue to explode in feuds and controversies. They will draw unusual attention and undermine the law. And rather than contributing to social order, the law will continue to drive Americans apart.
Lincoln Caplan writes for The New Yorker and is the author of the forthcoming book "The Tenth Justice: The Solicitor General and the Rule of Law."