Judge Robert Bork died today. He was 85. He will be remembered for many things that marked his long and varied public life—the students he taught at the Yale Law School, many of whom went on to distinguished careers of their own; his service in the Nixon administration as solicitor general of the United States, during which time he was called upon to fire Watergate Special Prosecutor Archibald Cox; his appointment by President Reagan as a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit; his subsequent nomination, in 1987, to be an associate justice on the United States Supreme Court, which failed following one of the stormiest confirmation battles in the nation’s history; and of course his many seminal writings over his long career, which were instrumental in shaping the modern conservative legal movement. It is these that will be my focus in this short remembrance.
After earning his bachelor’s and law degrees at the University of Chicago—the latter interrupted by service as a Marine officer during the Korean War—Bork practiced law during the 1950s before joining the Yale faculty in 1962. Having been influenced by Chicago’s economists, he was something of a libertarian, especially in his thinking about antitrust. In fact, his The Antitrust Paradox, published in 1978, shifted the entire focus of antitrust policy toward consumer welfare.
But at Yale, especially under the influence of his close friend and colleague, Alexander Bickel, Bork turned his attention also to constitutional law. Although Bickel could be called a liberal, in contrast to Bork’s emerging conservatism, both were concerned about what they saw, not without reason, as the “judicial activism” of the Warren and, later, Burger Courts. Thus in time—through his writings, his prominence, and his judicial opinions—Bork became one of the (if not the) most important voices in shaping the conservative response to the modern liberal understanding of the Constitution.
That response is best appreciated by noting first that, during the New Deal, the Court’s liberals had turned the Constitution on its head, following Roosevelt’s infamous Court-packing threat, by reading it as having authorized effectively unlimited regulatory and redistributive powers and as having protected only those rights that were consistent with that expansive governmental vision. Thus what followed was judicial deference to the political branches. By the mid-1950s, however, especially as civil rights concerns grew ever larger in the nation, the Court began to rethink its posture of “judicial restraint.” But what followed was an essentially untethered series of judicial opinions, some long overdue, others a reflection simply of the justices’ understanding of “evolving social values.” And the latter, in particular, were the ones that animated the conservative response, because conservatives, often rightly, saw the Court as imposing a liberal political agenda on the nation, contrary to the express wishes of the political branches.
That view, of course, was the target of the Senate Judiciary Committee members during the stormy hearings in 1987. Much of that criticism—from Senator Edward Kennedy, for example—was grossly unfair. But the critique stuck, because there was enough truth to it to do so.
In particular, as became crystal clear in Bork’s The Tempting of America, published in 1990, two years after he had stepped down from his seat on the D.C. Circuit, the view Bork and many other conservatives had staked out was itself less than faithful to the Constitution. As a few of us in the libertarian camp had been saying since the mid-1970s, neither the post-New Deal liberals (including the Warren/Burger variants) nor the conservatives who had reacted to them had grasped the Madisonian vision. It was not, as Bork wrote in 1990, that in “wide areas” majorities could rule simply because they were majorities (a view both camps held); but in “some areas” minorities were entitled to be free from majority rule (a view also held by both camps, although they differed profoundly about what those areas were, with liberals slighting economic liberties and property rights, conservatives slighting many personal liberties). Rather, Madison (and the Founders more broadly) stood for the principle that in “wide areas” individuals were entitled to be free because they were born free, whereas in “some areas” majorities were entitled to rule because the Constitution authorized them to.
We owe Bork credit, however, not simply for the often lonely struggle he waged against the liberal legal orthodoxy but for sharpening the debate as he did. He was a learned and gentle soul who made his mark on his world. May he rest in peace.