To the editor:
Mark Pulliam’s essay on Robert Bork [“The Original Originalist,” Summer 2018] is written through the lens of extreme right-wing bias. Thus, it shades the facts in an attempt to rehabilitate Bork, a man of strong, but not singular, intellect. Other candidates would have been better choices for the Court.
Bork’s “originalism” was heavily influenced by his conservatism. For him (and Pulliam and yes, even Antonin Scalia), it was a means to an end. There is a compelling originalist argument for abortion, but Bork hadn’t done the math. The newer generation of originalist scholars, such as Larry Solum and Randy Barnett, has corrected this error, though Pulliam clings to his own living constitutionalism.
Bork got the Ninth Amendment spectacularly wrong, calling it an “inkblot.” James Madison refuted that position in the House debate introducing his proposed Bill of Rights. Madison avoided attempting to enumerate every right he could think of; the Ninth Amendment became a mandatory canon of construction, equating unenumerated with enumerated rights. The right to marry, to send a child to religious schools, to enter into contracts, and not to have to remove your hat in deference to a “superior authority” were not mentioned, but they were all protected.
Doctrinaire religious conservatives hate that. They scream about individual liberty—except when they don’t like how you exercise your liberty, such as marrying someone of the same sex. Bork’s embryonic version of originalism was thoroughly debunked, ironically, by Scalia.
The coup de grace was Bork’s view on antitrust law. He never met a merger he didn’t like. Most people understood that monopolies distort the free market, stifling innovation and increasing costs to consumers. Bork was like a crazy uncle in the attic; his lack of awareness disqualified him.
Mark Pulliam responds:
Jim Baker asserts that “other candidates” were better qualified than Bork for the Supreme Court in 1987, but he does not identify any. The only legal scholar with remotely comparable stature with that of Bork was Seventh Circuit Judge Richard Posner, a prolific writer who became erratic—and intemperate—over the years, prior to his abrupt retirement from the bench in 2017. Bork’s multifaceted career (in private practice, as a Yale Law School professor, pathbreaking legal scholar, solicitor general, and judge on the D.C. Circuit) makes Posner’s achievements seem paltry in comparison.
Baker claims that there is “a compelling originalist argument” for Roe v. Wade but doesn’t say what it is. There is none. The Constitution is silent on abortion. Baker calls Bork a “doctrinaire religious conservative,” which is silly, because Bork’s lack of religiosity—a topic raised at his confirmation hearing—was viewed negatively by some Bible Belt senators who voted against his nomination. (He later converted to Catholicism.)
Bork’s judicial philosophy was based on the limited nature of the judiciary in our system of government. Bork’s antitrust scholarship was both innovative and transformative. Yale law professor George Priest, an antitrust expert, praises The Antitrust Paradox as being largely responsible for the change in the Supreme Court’s antitrust jurisprudence beginning in the late 1970s. Baker risibly calls Bork a “crazy uncle in the attic.”
Baker contends that Justice Antonin Scalia “thoroughly debunked” Bork’s version of originalism but, again, tellingly provides no support for these baseless accusations. Libertarians scorn Bork for the same reason that liberals opposed his confirmation: he refused to legitimize judges enacting their personal predilections as constitutional law.