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The Original Originalist

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The Original Originalist

Thirty years after Robert Bork was denied a seat on the Supreme Court, his formidable legacy lives on. Summer 2018
Politics and law

As a stoical Robert Bork sat before the Senate Judiciary Committee on the morning of September 15, 1987, surrounded by reporters, klieg lights, and television cameras, the 60-year-old jurist could look back on an accomplished career. For five and a half years, he had served on the D.C. Circuit, considered the nation’s most prestigious court other than the U.S. Supreme Court. Bork had also been a marine, a successful antitrust litigator, a law professor, solicitor general, and acting attorney general of the United States. But as he faced committee chairman Joe Biden and his hostile Democratic colleagues, including Ted Kennedy, Howard Metzenbaum, Robert Byrd, Patrick Leahy, and Paul Simon, the cerebral Bork was ill-suited—and disinclined—to duplicate the dramatic performance given in the same hearing room a few months earlier, when the telegenic Lt. Col. Oliver North parried with a joint congressional committee investigating the Iran-Contra affair. Against the urging of his handlers, and with his nomination to the U.S. Supreme Court by President Ronald Reagan hanging in the balance, Bork made no attempt to emulate North, believing that such rhetorical flair was undignified for a judge.

Instead, during an unprecedented five days of grilling, Bork chose to answer the committee’s questions “matter-of-factly” and to explain his view of judging “fully.” The media coverage, featuring the judge’s lengthy, dispassionate responses, failed to rally the American public in his favor, unlike North’s gripping testimony. Ultimately, despite Bork’s stellar credentials, the Senate voted him down, largely on party grounds—an outcome that coined the now-ubiquitous term “borking.”

Bork’s defeat was a watershed event in judicial politics, and reverberates still—it prevented a conservative realignment of the Court (due to the appointment of moderate Justice Anthony Kennedy in place of Bork) and forever transformed the judicial-confirmation process into an ideological gauntlet. No High Court nominee would ever again be as forthright, or be denied confirmation for such transparently ideological reasons. Ironically, the Senate’s rejection of Bork—due to his steadfast advocacy of judicial restraint and sticking to the constitutional text—did not prevent the ascendancy of his brand of “originalist” constitutional theory and, in fact, may have bolstered it, by giving him a bully pulpit that he would use effectively for the rest of his life.

The saga of Bork’s confirmation hearing—the most contentious in the nation’s history and one of the riveting political dramas of modern times—has begun to recede from public consciousness. Thirty years later, and more than a half-decade after Bork’s 2012 death, it’s worth recalling those events and the man at the center of them.

After the April 2017 confirmation of Justice Neil Gorsuch, an adherent of originalism, the Supreme Court had nine justices once again, averting the potential for 4-to-4 deadlocks that sometimes occurred following the untimely death of conservative Justice Antonin Scalia in February 2016. The Court’s precarious balance provoked ceaseless speculation by pundits and reporters. In his first full term, would Gorsuch, President Trump’s much-heralded appointee, vote differently from the legendary Scalia? Would the 81-year-old Justice Anthony Kennedy—in his 30th year and rumored to be considering retirement—continue to be the deciding vote in key cases? And when would the oldest justice, Ruth Bader Ginsburg, 84 and in poor health, step down?

On June 27, 2018, Justice Kennedy ended the suspense, announcing his retirement from the Court. Kennedy’s departure gives President Trump and Republicans an opportunity to shift the balance of the Court rightward, and it sets up, in the fall, what will likely become the most contentious confirmation hearings since those held for Bork—the man originally tabbed for the seat that became Kennedy’s.

As liberal Justice William J. Brennan used to say, the most important principle of decision making on the Court is the “Rule of Five.” With a five-vote majority, Brennan quipped, anything is possible. On a court divided between conservatives and liberals, the moderate Kennedy effectively determined the outcome of many 5-to-4 decisions. Predicting how he would vote was hard because he often vacillated. Kennedy’s self-styled role as the Court’s ideological fulcrum made him the most powerful justice, a role previously held by centrist Sandra Day O’Connor prior to her 2006 retirement. In the 2016–2017 term, Kennedy was in the majority an astounding 97 percent of the time, more than any of his colleagues.

It needn’t have been this way, and almost wasn’t. It is often forgotten that Kennedy, nominated in November 1987 and confirmed by the Senate in February 1988, was not President Reagan’s first choice (or his second) to fill the vacancy created by the unexpected retirement of the moderate Lewis F. Powell, Jr. Kennedy sits on the Court not only because the Senate rejected Bork, the most qualified nominee ever to be denied confirmation, but also because the second-choice candidate, Douglas Ginsburg, withdrew because of a youthful peccadillo.

In retrospect, it seems clear that Reagan wasted two of his three Supreme Court picks. Both Kennedy and O’Connor (appointed by Reagan in 1981) were disappointments, often deserting their conservative colleagues to vote with the Court’s liberal bloc. Reagan’s Court appointments are particularly rueful because he enjoyed a Republican majority in the Senate for the first six years of his presidency, which would have ensured confirmation of even “controversial” nominees with well-defined conservative views, such as Bork.

O’Connor, an undistinguished Arizonan whom Reagan selected to fulfill a campaign promise to appoint the first woman to the court, was unanimously confirmed. For the second seat, two highly qualified candidates were on the short list, both solid conservatives then serving on the D.C. Circuit: Bork and Scalia. Bork was regarded as the front-runner, but the White House was sensitive to historical symbolism, and Scalia’s appointment would represent another broken barrier: the first Italian-American justice on the Supreme Court. Fortuitously, the second seat became vacant in 1986, shortly before the midterm elections in which the GOP lost control of the Senate. Reagan surprisingly chose Scalia over Bork for the second opening. Historians will long debate the consequences of that decision.

On September 17, 1986, Scalia sailed through the Republican-controlled Senate by a 98 to 0 vote. Even New York’s liberal Democratic governor, Mario Cuomo, a fellow Italian-American, supported confirmation. Scalia replaced Associate Justice William Rehnquist, who was promoted to chief justice upon the retirement of Warren Burger.

Bork was nominated in a very different political context. In the final two years of his administration, Reagan faced a hostile, Democratic-led Senate, and was wounded politically by the Iran-Contra controversy; confirming Bork wouldn’t be so easy.

Bork had had an illustrious legal career, achieving remarkable success in every endeavor that he undertook. Former attorney general Ed Meese has described him as “one of our nation’s greatest legal minds.” Born in 1927, Bork enlisted in the U.S. Marine Corps at 17 to fight in World War II. Following his graduation from the University of Chicago, where he obtained both his undergraduate and law degrees, Bork practiced law with the prestigious firm Kirkland & Ellis (where he became a partner) for eight years before joining the faculty of Yale Law School in 1962. Then, as now, Yale was generally considered the nation’s top law school. Bork taught at Yale from 1962 to 1975, specializing in antitrust and constitutional law. His many students included Bill and Hillary Clinton and Jerry Brown.

Heavily influenced by the free-market teachings of Aaron Director at the University of Chicago, for whom he had worked as a research assistant, Bork developed a distinctive approach to antitrust laws, which proscribe business activity deemed anticompetitive. Bork’s vision, reflected in a series of scholarly articles and eventually set forth in his much-cited 1978 book The Antitrust Paradox, advocated a focus on consumer welfare rather than on protecting inefficient competitors. Thus, Bork argued, many corporate mergers are beneficial; a company’s relationships with its suppliers, distributors, or customers (so-called vertical arrangements) ought to be of no concern to regulators; and the law’s principal aim should be to prevent “horizontal restraints”—cartel-like collusion among firms—that restrict competition, fix prices, or divide markets. Bork’s application of economic analysis to antitrust policy, quite novel in its day, revolutionized the field, became widely (if not universally) accepted, and now dominates antitrust scholarship. Since the 1970s, the Supreme Court’s interpretation of federal antitrust laws has shifted to reflect the “Chicago School” approach that Bork pioneered, and the Court has repeatedly cited The Antitrust Paradox in its decisions.

The restless Bork, not content to be a scholar, left his tenured position at Yale for the Nixon administration. From 1973 to 1977, he served as solicitor general, the third-ranking official in the Department of Justice, representing the federal government before the U.S. Supreme Court, where he personally argued many high-profile cases. Chief Justice Warren Burger rated Bork the most effective advocate to appear before the Court during his lengthy tenure. Unfortunately, Bork’s SG stint is often recalled primarily for his role in the Saturday Night Massacre, in which he fired special prosecutor Archibald Cox—investigating the Watergate scandal—on President Nixon’s orders, after Attorney General Elliot Richardson and his deputy resigned in protest. As Bork recounted in his memoir, Saving Justice, he and Richardson orchestrated the events to ensure that Cox’s prosecutorial staff was retained. Cox’s eventual replacement, Leon Jaworski, pressed for the release of the incriminating White House tapes that led to Nixon’s resignation. Throughout this difficult episode, Bork conducted himself with honor.

“Bork’s life was an intellectual odyssey, in which he sought to identify his core beliefs by testing ideas.”

Following a short return to Yale Law School (1977–81), where he was named to the Alexander M. Bickel Chair of Public Law, Bork was appointed by President Reagan to the U.S. Court of Appeals for the D.C. Circuit, widely regarded as the most coveted judicial position in the U.S. system short of the Supreme Court. Indeed, serving on the D.C. Circuit is often a stepping-stone to the High Court. Not surprisingly, given Bork’s sterling legal record, the American Bar Association unanimously gave him its highest rating, “exceptionally well qualified,” and in February 1982, the Senate unanimously confirmed his nomination. Bork served on the D.C. Circuit from 1982 to 1988, writing or joining in more than 400 decisions, 90 percent of them unanimous. None of the 150 opinions he authored wound up reversed by the Supreme Court; in a half-dozen cases, the Court even adopted the position that he advanced in dissent.

The pinnacle of an exceptional lawyer’s career might consist of practicing law as a partner in a major law firm, holding an endowed chair at Yale Law School, authoring a pathbreaking legal treatise, serving as solicitor general of the U.S., or sitting on the D.C. Circuit. Bork achieved all those distinctions.

Bork’s life was an intellectual odyssey, in which he sought to identify his core beliefs by testing ideas in the classroom or in writing. During law school, Bork had shifted from being a New Deal Democrat to a market-oriented Republican. He said that he decided to leave private law practice to join Yale because “I wanted a rather broader intellectual life in the law.” Bork experimented with ideas like a gourmet chef in a kitchen. (At his Supreme Court confirmation hearing, Bork explained that he wanted to serve on the Court in part because “it would be an intellectual feast just to be there.”) While teaching at Yale during the tumultuous 1960s, when most of the legal academy was tacking left, the independent-minded Bork’s search for a coherent approach to constitutional law ultimately led him in the opposite direction.

In 1971, at the Indiana University law school, Bork delivered a lecture, “Neutral Principles and Some First Amendment Problems,” which was later published in the Indiana Law Journal. Bork’s essay—ranked as the tenth-most-cited law review article ever—became the foundation for the constitutional philosophy that he would espouse for the rest of his life. While ostensibly addressing the First Amendment, Bork digressed to criticize Griswold v. Connecticut (1965) for recognizing an unwritten right to “sexual privacy” for married couples wishing to use contraceptives banned by state law. While conceding that Griswold “has been acclaimed by legal scholars as a major advance in constitutional law,” Bork condemned its reasoning as unprincipled, unsupported by the text and history of the Constitution, and therefore illegitimate.

Bork’s provocative views put him at odds with most of his academic colleagues, who throughout the 1970s were developing various activist theories of constitutional law—justifications for judges to invent new rights that suited the Left’s political agenda. The Court’s recognition of abortion rights in Roe v. Wade (1973)—striking down state laws nationwide—emboldened liberal law professors to articulate ever more result-oriented theories, urging judges to impose their desired policy objectives, from busing students to achieve racial balance to race-based affirmative action to abolishing the death penalty, and much else. This was the heyday of the “living Constitution.”

Prior to originalism’s triumph in the 1990s, these liberal constitutional theories held sway, and throughout the 1970s, Bork was their main antagonist. In a 1979 article in the Washington University Law Quarterly, Bork mocked the liberal position as seeking “to create rights by arguments from moral philosophy rather than from constitutional text, history, and structure. The end result would be to convert our government from one by representative assembly to one by judiciary.” Some of the doctrinal innovations advocated by the Left—such as welfare rights, comparable worth, busing, and abolition of capital punishment—thankfully faded into oblivion along with other 1970s fads, including bell-bottoms, leisure suits, and sideburns. But many others remained, and continue to this day, as part of the Left’s long march through legal academia.

Rejecting the idea of judges legislating from the bench, Bork believed that judges should instead play a limited role: to enforce the Constitution as written. This approach—often expressed as “judges should interpret the law, not make it”—has, over time, been referred to variously as strict construction, original intent, interpretivism, judicial restraint, textualism, and originalism. The labels, and even the fine points of application, are less important than the general orientation.

In Bork’s view, the Constitution derives its moral authority, as law, from the fact that the states ratified it. Accordingly, its text should be interpreted as it was understood at the time of its adoption. Judges have no warrant to expand upon the constitutional text—or to invent new rights—just because they favor the result in a particular case. Judicial power, unless constrained by the Constitution’s original meaning, will become excessive, usurping power properly reserved to the elected branches, or the people. When judges exceed their proper role, by recognizing “liberties” not credibly drawn from the constitutional text or history, they diminish citizens’ most important freedom: the right to govern themselves in a representative democracy.

Bork’s position, consistent with Alexander Hamilton’s conception of the judicial role in Federalist 78, seems as though it shouldn’t be controversial, but it directly challenged the dominance of the legal professoriat and the liberal interest groups that benefited from judicial activism. As Bork framed the issue: “Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.” While Bork was not the only conservative in legal academia, he was certainly the most influential—and articulate—advocate for originalism. From its inception in 1982, Bork was also conspicuously associated with the Federalist Society, a conservative legal organization, both as a speaker and as cochairman of its board of visitors.

Acting Attorney General Bork meeting with President Richard Nixon and Secretary of State Henry Kissinger in 1973, about a month after the Saturday Night Massacre (AP PHOTO)

Conservatives were ecstatic when Reagan announced on July 1, 1987, that he was nominating Bork for the Powell seat. Reagan described Bork as “a premier constitutional authority . . . widely regarded as the most prominent and intellectually powerful advocate of judicial restraint.” Liberal groups, fearful that Bork would tip the Court’s balance, putting prized precedents such as Roe v. Wade at risk, were ferociously opposed. Based on feedback from the Senate leadership, the White House anticipated that the nomination, while controversial, would ultimately win approval. Senate majority leader Robert Byrd told a reporter: “I frankly think [Bork] would probably be confirmed.” Such complacency, while in hindsight misplaced, was not absurd. Historically, the Senate’s exercise of “advice and consent” to Supreme Court nominations had generally been perfunctory, with confirmation hearings sometimes lasting only minutes. Scalia’s unanimous confirmation had happened only a year earlier.

Washington insiders failed to account for three things: the Left’s special antipathy for Bork, due to the intellectual threat that he posed to the living Constitution; the demagogic force of Senator Ted Kennedy’s preemptive attack on Bork; and the unprecedented media campaign waged against his nomination. Less than an hour after Reagan announced the nomination, Kennedy made one of the most disgraceful speeches ever delivered on the Senate floor, falsely accusing Bork of standing for “back-alley abortions,” segregated lunch counters (despite Bork’s long-standing support of Brown v. Board of Education), “rogue police” conducting midnight raids, censorship, and other scurrilous charges. “Not one line of that tirade was true,” Bork later reflected; at the time, he naively assumed that no one would believe the charges, which were televised nationwide.

Regrettably, Kennedy’s extreme rhetoric resonated with the Left’s grassroots, prompting Senator Joe Biden, chairman of the Judiciary Committee (and prospective presidential candidate in 1988), to announce his opposition, though he had previously expressed support for Bork. Simultaneously, a well-coordinated coalition of 300 organizations, led by Norman Lear’s People for the American Way, spent more than $10 million in anti-Bork advertisements (some narrated by actor Gregory Peck) and intense lobbying efforts directed at uncommitted senators.

The White House, swept up in the Iran-Contra affair, reacted slowly. Expecting to portray the nominee as an eminently qualified moderate in the mold of Justice Powell, Bork’s backers were flummoxed by his caricature as a wild-eyed radical. Biden delayed Bork’s confirmation hearings—typically a formality—an extraordinary two and a half months to allow the anti-Bork forces to mobilize, and then orchestrated an inquisition by Bork’s foes to vilify the nominee. The stunned White House never responded effectively.

The no-nonsense Bork approached his televised hearings—which lasted an unprecedented 12 days—as an academic exercise instead of as a public-relations event. Alas, the Senate Judiciary Committee was not a Yale law classroom, and his five days of testimony were not a tutorial for eager students. Bork’s scraggly beard, brusque demeanor, and ponderous, baritone responses did not sway skittish senators, worried about public opinion. The Judiciary Committee’s rejection of Bork by a lopsided 9-to-5 vote spelled political doom for the nomination, but the combative ex-marine refused to withdraw. After several days of bitter argument on the Senate floor, Bork’s nomination was defeated by a 58-to-42 vote.

Bork’s enemies had won. A nominee’s exceptional qualifications—once the sole criterion for confirmation—were no longer the benchmark for Senate approval. Special-interest groups learned that they could demonize judicial nominees based solely on ideology. Worse, character assassination—“borking”—proved a highly effective tactic. Legal journalist Jeffrey Rosen, who interned for Biden during the summer of 1987, later recalled “feeling that [Bork] was being treated unfairly” and that his “record was distorted beyond recognition.” Such candid musings by liberals, absent during the witch-hunt atmosphere of 1987, surfaced only decades later.

Fidelity to the law—judicial restraint—is controversial only if one believes that courts should be playing a policymaking role. If the Supreme Court is free to reach decisions based on nothing more than the individual justices’ predilections, the potential beneficiaries of Supreme Court lawmaking will be highly motivated to support or oppose nominees solely based on their political views, rather than their integrity, competence, or commitment to the rule of law. And it is far easier for liberal-interest groups to influence the composition of a nine-member court than it is to control the Congress, the presidency, and the democratically elected governments of the 50 states.

After Bork’s defeat, Supreme Court nominations would be handled differently—as stage-managed political campaigns. Never again would grassroots conservative groups be caught flatfooted in a confirmation battle. As Reagan biographer Steven Hayward notes: “By far the most significant lasting consequence of the Bork inquisition is that it ensured that no future high court nominee would ever again candidly discuss his or her judicial philosophy before the Judiciary Committee, and before reaching that threshold many judges and legal figures self-censor their public comments, lest a speculation or argument be dredged up in a prospective confirmation hearing someday.”

The politicization of confirmation hearings thus engendered the emergence of “stealth candidates,” bereft of paper trails—begetting ciphers such as Anthony Kennedy and David Souter—and vapid confirmation hearings in which nominees decline to provide substantive responses regarding their views on specific legal precedents.

Bork was understandably dismayed by the unseemly spectacle of his confirmation hearings, primarily due to the threat it represented to the role of judges and the independence of the judiciary. Within months, he resigned his life-tenured seat on the D.C. Circuit (where Clarence Thomas succeeded him). As Bork explained in his resignation letter to President Reagan, the politicization of his confirmation endangered our system of constitutional self-government, motivating him to “speak, write, and teach about law” to a greater extent than he could as a sitting judge. Bork felt compelled to embark on a campaign to educate the public about “the proper function of judges in our constitutional democracy.”

And campaign he did. From a perch at the American Enterprise Institute, where he became the John M. Olin Scholar in Legal Studies, Bork became a prolific author. He wrote his best-selling 1990 book, The Tempting of America (subtitled The Political Seduction of the Law), during his long AEI residency. The Tempting of America put his confirmation hearing in the context of the larger struggle for liberal hegemony in constitutional decision making. In Bork’s words: “The clash over my nomination was simply one battle in [the] long-running war for control of our legal culture.” While the book was in part a score-settling memoir (Bork devoted an entire chapter to refuting the mendacious charges of Kennedy, Biden, and others), it also was a highly accessible exegesis of his constitutional philosophy and an exposé of the Court’s activism. That a primer on originalism made the New York Times bestseller list is a remarkable achievement. National Review senior editor Ramesh Ponnuru called The Tempting of America “the most important popular statement of judicial conservatism yet produced.” Its influence has been enormous.

“Fidelity to the law is controversial only if one believes that courts should be playing a policymaking role.”

Bork saw his confirmation battle as a skirmish in the larger culture war, with the numerically small, left-leaning intellectual class using judicial activism to impose its socially permissive, secular, and egalitarian agenda on the rest of society. This theme, touched upon in The Tempting of America, took center stage in his next book, Slouching Towards Gomorrah: Modern Liberalism and American Decline (1996), also written while at AEI. As the title suggests, Bork saw America as a nation suffering from a deepening cultural decadence, for which the ascendancy of liberalism—hatched in the 1960s—could take much of the blame. Abetted by activists on the Supreme Court, modern liberalism was responsible for radical egalitarianism (quotas, affirmative action, feminism) and radical individualism (pornography, abortion, hostility to religion), which, he contended, threaten the bourgeois values and traditional morality at the core of Western society.

Bork saw with alarm the expansion of the Court’s “extra-constitutional individualism,” evidenced by the four dissenters in Bowers v. Hardwick (1986) declaring their willingness to recognize a constitutional right to engage in homosexual sodomy—which ultimately came to pass in 2003, in a decision written by Anthony Kennedy (Lawrence v. Texas). This activist expansion of rights unimagined by the Founding Fathers prompted Bork to propose a constitutional amendment letting Congress overrule errant Supreme Court decisions. Bork’s controversial proposal, along with his unremitting criticism of popular culture and suggestion that limited censorship might be necessary to promote civic virtue, led some critics—including some on the right—to pan Slouching Towards Gomorrah as a jeremiad. Libertarians, in particular, took offense at Bork’s attack on “radical personal autonomy,” condemnation of homosexuality as immoral, and equation of libertarians to “libertines.”

Liberals pointed to Bork’s moralizing (using unfashionable terms such as “rot,” “decadence,” “hedonism,” “deviance,” and “depravity”) as proof that their opposition to his confirmation was justified. Nevertheless, Slouching Towards Gomorrah was a bestseller, and two decades on, the book’s gloomy analysis of political correctness in higher education, of the destructive influence of multiculturalism, and of the futility of race-based affirmative action remains powerful.

Slouching Towards Gomorrah would be Bork’s last major book of original material. Bork reprised some of his familiar themes in a shorter book, Coercing Virtue (2003), published by AEI, with an emphasis on the threat posed by the “internationalization” of law and judicial activism in other nations. Bork edited and wrote the introduction to a collection of essays published in 2005 by the Hoover Institution Press, A Country I Do Not Recognize—referring to a phrase from a 1996 dissenting opinion written by Scalia, lamenting the Court’s ongoing rewriting of the Constitution. In 2008, Bork released a large collection of his briefs, oral arguments, judicial opinions, articles, and personal reflections—including some lighter fare, such as an essay on his fondness for martinis—called A Time to Speak.

In addition to these books, and the posthumous account of his tenure as solicitor general, Bork wrote numerous essays for various influential publications, including the Wall Street Journal, National Review, and The New Criterion. He also served as a fellow at the Hoover Institution and the Hudson Institute and taught law at George Mason University and Ave Maria Law School (he had converted to Catholicism in 2003). Following his resignation from the bench in 1988, he was clearly the most influential commentator on constitutional issues in conservative circles.

Bork also continued to play an influential role in antitrust enforcement. In the late 1990s, he roiled some free-market absolutists in antitrust circles when he weighed in on behalf of Netscape—early on, a dominant player in the web-browser market—in its legal battle against archrival Microsoft’s exclusionary practices. Bork believed that those practices enhanced Microsoft’s software monopoly without creating any operating efficiencies benefiting consumers. Critics viewed this stance as inconsistent with his noninterventionist theories and accused him of being seduced by Netscape’s consulting fees. Ever the truth-teller, Bork pointed out that he had declined an equally lucrative offer to consult for Microsoft and insisted that his position was consistent with The Antitrust Paradox, which condemned “deliberate predation” that improperly inhibits competition. Microsoft settled the long-running case after losing at trial and failing to get the factual findings reversed on appeal; in hindsight, scholars agreed that Bork’s analysis of the case was basically correct and consistent with his previous work.

Looking back at the events of 1987, one wonders what Bork’s contribution on the Court would have been had he been confirmed. Based on his writings, one can safely conclude that he would have been a consistent conservative vote, similar to Scalia but more sympathetic to law enforcement in criminal cases, less enamored with administrative law, and favoring a narrower conception of the First Amendment. (Given his commitment to judicial restraint, it’s unclear how Bork would have voted in District of Columbia v. Heller [2008], the 5-to-4 decision written by Scalia recognizing an individual right to own firearms pursuant to the Second Amendment.)

Overall, the Court would likely have hewn more closely to an originalist course, ruling in favor of traditional marriage, banning racial preferences in college admissions, upholding statutes banning flag-burning, and returning regulation of abortion to the states. Together with Scalia and the other conservative justices, Bork would have interred the notion of a living Constitution. As a general proposition, had Bork been confirmed, almost every liberal victory before the court decided by a 5-to-4 vote in recent decades would have been a conservative victory instead. It is unlikely that the fearless Bork, had he been confirmed, would have “grown in office,” as so many other Republican appointees have, by seeking favor from liberal journalists and law professors.

Comparisons with Scalia are inevitable. When both men sat on the D.C. Circuit in the early 1980s, Bork was better known and more accomplished. As a result of his extraordinary 30-year career on the Court, and his flair for writing memorable dissents, Scalia is now regarded as one of the most influential justices in Court history. Bork’s scholarly contributions after his resignation from the bench, while substantial, do not rival Scalia’s jurisprudential footprint. Yet this comparison is unfair. While Scalia fine-tuned the concepts of originalism and textualism—and was a genuine pioneer in the rejection of legislative history as a tool of statutory interpretation—Bork had blazed the path with his Indiana Law Journal article and later writings. Had Bork had the opportunity to serve on the Court for the remaining 25 years of his life, moreover, he would undoubtedly have written many forceful decisions.

Bork’s potential contribution to constitutional jurisprudence is thus lost to history. What remains in its place—as a casualty to “borking”—has been a muddled Court and a politicized judicial-confirmation process. Yet Bork’s confirmation defeat did not discredit the constitutional philosophy that he legitimized. Northwestern University law professor and City Journal contributing editor John McGinnis has rated him “the most important legal scholar on the right in the last fifty years.” Thanks to Bork’s persistence—and courage—originalism has triumphed, as demonstrated by the canonization of Scalia and the appointment of Gorsuch and other originalists to the federal bench.

Still, we can lament that Bork never had the chance to join Scalia in the pantheon of notable justices, which includes John Marshall, Oliver Wendell Holmes, and William Rehnquist, among many others. Andrew Cohen noted in a tribute to Bork in The Atlantic upon his death: “And so a man with an immense legacy in the law will be forever known not for what he achieved but for what he did not. . . . He is a hero to some, a villain to others, but for a brilliant man who was first of all direct and forthright, that’s a terribly sad legacy, indeed.”

Top Photo: Robert Bork appears before the Senate Judiciary Committee during his confirmation hearings in 1987. (JIM GRAHAM/REDUX)

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