In this Sept. 15, 1987 file photo, Judge Robert Bork, nominated by President Reagan to be an associate justice of the Supreme Court, is sworn before the Senate Judiciary Committee on Capitol Hill at his confirmation hearing.AP
Shown here is the late Judge Robert Bork.AP
Sept. 16, 1987: U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee during his confirmation hearings on Capitol Hill.AP
With the passing of Judge Robert Bork, who died on Wednesday, America has lost one of its most influential legal scholars. Although the mainstream media tends to focus on Bork’s unsuccessful nomination to the Supreme Court in 1987, Bork’s legacy is one, not of failure, but of overwhelming success.
Bork, who died at the age of 85, had a lengthy career before and after his brush with the Senate’s brutal confirmation process. Before Bork was nominated to the Supreme Court he had served for two decades on the Yale Law School faculty and five years as a federal appellate judge. As an academic, Bork revolutionized antitrust law – which deals with monopolies – establishing that consumer protection is the only proper justification for anti-monopoly laws. Nowadays, Bork’s interpretation of antitrust law is widely accepted.
More importantly, Bork is one of a handful of jurists who succeeded in changing the way in which Americans view our supreme law: the Constitution. At the time of Bork’s Supreme Court nomination, originalism – the doctrine that the Constitution should be applied as it was 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 meaning of the Constitution.
In his book, The Tempting of America, Bork was the first scholar to provide the general public with a detailed philosophy of originalism. He also dispelled the myth that originalism entails an attempt to read the secret intentions of the Constitution’s 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.” And that is “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, there was no serious question about his qualification for the bench. Just five years earlier, he had been unanimously confirmed for the DC 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. The late 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 Oct. 3, 1987, Bork’s nomination was rejected by the Senate on a 58-42 vote.
But even that setback ultimately served to advance Judge Bork’s constitutional agenda by galvanizing conservatives. In the four years after the confirmation battle, the leading conservative legal organization, the Federalist Society, saw its budget double due to the “Bork effect,” according to Commentary magazine. Today, originalism has moved from the fringes to the mainstream. Even many liberal legal scholars concede that judges ought to be guided by the original understanding of the Constitution. Scholars of all stripes agree, for example, have adopted an originalist approach to the Second Amendment’s right to bear arms – even though they may disagree as to the historical meaning of the text.
No Supreme Court nominee today would 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.
Adam Freedman covers legal affairs for Ricochet. His latest book is The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books).