With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Borks unsuccessful nomination to the Supreme Court in 1987, Borks legacy is one, not of failure, but of enormous success.
Bork had a lengthy career before and after his brush with the Senates brutal confirmation process. Prior to his nomination, he had served for two decades on the Yale Law School faculty and for five years as a federal appellate judge. As an academic, Bork revolutionized antitrust law, which deals with monopolies. He established consumer protection as the only proper justification for anti-monopoly laws. Today, Borks interpretation of antitrust law is widely accepted.
More important, Bork is one of a handful of jurists who succeeded in changing the way Americans view our supreme law: the Constitution. In 1987, originalism—the doctrine that the Constitution should be applied as originally understood—was considered a fringe theory. The reigning philosophy in academia and on the bench was that we have a living Constitution, in short, that judges can unilaterally change the documents meaning. In his 1990 book, The Tempting of America, Bork became the first scholar to provide a detailed explanation of originalism for the general public. He also dispelled the myth that originalism seeks to divine the secret intentions of the Constitutions framers. Rather, it is an attempt to understand how the text would have been understood by those who ratified our Constitution and its various amendments. Bork explained that this task was vital because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean.
When President Reagan nominated Bork to the Supreme Court, no one questioned his qualifications. Just five years earlier, he had been unanimously confirmed for the D.C. Circuit Court of Appeals, having earned an exceptionally well qualified label from the American Bar Association. But in the interim, the Democratic Party had taken control of the Senate. Senator Ted Kennedy orchestrated a smear campaign against Bork so breathtaking in its distortion that even the liberal Washington Post denounced it as a lynching. On October 3, 1987, the Senate rejected Borks nomination on a 58-42 vote.
Even that setback ultimately served to advance Judge Borks constitutional agenda. It galvanized conservatives. In the four years after the confirmation battle, the leading conservative legal organization, the Federalist Society, watched its contributions soar, partly as a result of the Bork effect. Today, originalism has moved from the fringes to the mainstream. Many liberal legal scholars concede that judges ought to be guided by the original understanding of the Constitution.
No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a living Constitution philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.
Indeed we are. And for that, we should thank Robert Bork.