December 19, 2012 11:19AM

Passing of a Conservative Legal Giant

While libertarians have many disagreements with Robert Bork, it’s undeniable that the man had an outsized impact on law and legal policy that included fomenting the pushback against the progressive excesses of the Warren Court.  Best known to the public as the prickly arch-conservative who (illegally) fired the special Watergate prosecutor and was rejected for the Supreme Court—after a nomination that set the bitter stage for modern confirmation battles—Bork’s enduring legacy lies elsewhere.  His work on antitrust law, in line with the nascent law-and-economics movement, transformed the field into one focused on consumer welfare rather than government management of industry and continues to influence legal doctrine and jurisprudence.  His pioneering development of originalism as the one coherent method of constitutional interpretation led to a revival of the once-quaint idea that constitutional text, structure, and history matter more than the subjective policy views of particular judges.

Bork was certainly, inexcusably wrong in emphasizing judicial restraint over getting the law right—John Roberts’s vote in the Obamacare case was a fruit of that poisonous tree—and in reading unenumerated natural rights out of the Constitution (famously likening the Ninth Amendment to “an ink blot”).  He also misunderstood the “Madisonian dilemma” of judges making unpopular rulings, positing that majorities are entitled to rule in wide swaths of life, with limited exceptions for individual freedom—that’s exactly backwards!  And he, like Justice Scalia, too easily made peace with the New Deal’s abandonment of the doctrine of enumerated powers, which resulted in the government getting the benefit of the doubt not much less than from liberal jurists.  In the end, however, we should remember him as an intellectual powerhouse who nearly single-handedly fought the progressive hijacking of the law until better reinforcements could arrive.  R.I.P.