By Gregory J. Sullivan
The death of Robert Bork on Wednesday at the age of 85 brings to a close one of the most influential careers in American law.
Although denied a seat on the U.S. Supreme Court, Bork nevertheless brilliantly developed and advocated an approach to constitutional interpretation that is the only tenable method for a jurist in our system: namely, original understanding, which finds meaning by concentrating on the text, history, and structure of the Constitution.
Following an academic career at Yale Law School, Bork served as a highly effective solicitor general in the Nixon administration. In addition to arguing cases before the Supreme Court, he handled the firing of Special Prosecutor Archibald Cox in what became known as the Saturday Night Massacre. Subsequently, Bork returned to academia (and published his influential The Antitrust Paradox in 1978); he was later appointed to the Court of Appeals for the District of Columbia Circuit. Then, in 1987, President Ronal Reagan nominated Bork to the Supreme Court.
It was this nomination that became one of the most consequential political fights of our time.
The tone of intellectual dishonesty and sheer viciousness of the campaign against Bork's nomination was set in the infamous utterance of U.S. Sen. Edward Kennedy (D., Mass.) immediately following the announcement of the nomination: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is - and is often the only - protecter of the individual rights that are the heart of our democracy."
William F. Buckley Jr. memorably excoriated this demagoguery: "Now either Sen. Kennedy was drunk when he uttered these lines, in which case he should not drink before he orates, or else he has proved as irresponsible as any demagogue in the recent history of the United States. It is hard to imagine anyone in this century - Bilbo, Smith, McCarthy, Coughlin - coming up with charges so withered in distortion and malice."
The hearings before the Senate Judiciary Committee, led by then-Sen. Joe Biden, were a rancid exercise in defamation. (One of the few benefits of the hearings was the national exposure of Biden, whose questioning revealed an infantile understanding of the Constitution, as a colossal dunce.) The Judiciary Committee voted against the Bork nomination, and he was then rejected by the full Senate. Eventually, Anthony Kennedy, a federal circuit-court judge, was confirmed.
Of course, Kennedy would later vote to uphold the catastrophic abortion regime promulgated by Roe v. Wade in the 1992 Planned Parenthood v. Casey. In this area and others, the defeat of Bork resulted in the continuing deformation of our constitutional jurisprudence. It is impossible to overstate the point that we would be a vastly different - and better - nation if Bork had been confirmed.
Bork turned defeat into a triumph for his ideas when he published The Tempting of America: The Political Seduction of the Law in 1990. The book is an erudite and cogent refutation of especially the privacy and equal-protection cases of the Supreme Court. (Bork also reviewed his nomination fiasco with devastating portraits of senatorial obtuseness.) He fully set forth the case for original understanding in The Tempting of America, and it remains the seminal work on the subject. (His 2008 collection, A Time to Speak: Selected Writings and Arguments, also contains a great deal of valuable writing on this and related matters.)
The American Constitution creates a political system that is fundamentally majoritarian, with courts assigned a vital but modest role in that system. The removal of nation-defining issues by the courts from majoritarian control and their placement under judicial regulation without constitutional warrant is the most damaging corruption to that system ever. No one understood this danger with more insight than Bork, and no one has written so eloquently and persuasively against it. His salutary influence on our thinking about law in general and the Constitution in particular will endure for many, many years to come.