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Remembering Judge Bork
A tribute


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MAGGIE GALLAGHER
It’s hard to remember now how alone he stood back then.

Back in the days before a group of conservative Yale students founded the Federalist Society;  before we could count at least four judicially conservative Supreme Court justices; when judicial conservatives seemed always to “grow” once in office to the pleasure of the New York Times — Robert Bork stood out as an inspiring symbol of intellectual integrity, and fruitfulness.

While an undergraduate at Yale, I took his course in antitrust law at the Yale Law school and became friends with one of his sons, which meant I was in his living room the night Reagan got elected and conservatism went from a forlorn hope to a governing philosophy.

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For Robert Bork, Reagan’s election meant moving his ideas out of the academy and onto the bench.

When Reagan finally got around to nominating him to the Supreme Court, a shocked legal elite and Democratic political class recognized that here was one man who would not “grow” in office. They set out to assassinate his character. A man who was a federal judge, a Yale law professor, and a former solicitor general was judged “not qualified” by four members of the American Bar Association. Senator Kennedy, may he rest in peace, proceeded to “bork” Judge Bork: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, school children could not be taught about evolution, writers and artists could be censored at the whim of government.”

Six Republicans, to their shame, joined the Democrats in refusing to confirm Judge Bork, and we got Justice Anthony Kennedy instead.

Robert Bork’s America is a place where impatient elites would not misuse the power of the court to remake American values. We miss him, already.

— Maggie Gallagher is a co-author of Debating Same-Sex Marriage.


RICHARD W. GARNETT
Before his name became a verb — meaning “to meanspiritedly smear and misleadingly attack a judicial nominee” — and before he became a symbol and “icon,” Robert H. Bork was a first-rate jurist and an important legal scholar. His The Antitrust Paradox powerfully influenced both the thinking in the academy and the practice on the ground. His insistence in, for example, The Tempting of America, that the Constitution of the United States should be interpreted, applied, and enforced in a way that is faithful to the understandings and goals of those who ratified it transformed and still shapes our public conversations about our basic law. And, more than 40 years ago, in the widely cited article “Neutral Principles and Some First Amendment Principles,” he challenged the rapidly expanding reach of judicial review generally, and of the First Amendment’s Free Speech Clause specifically. As he reminded us, the constitutionalization of an issue or question — for example, the judge-driven enlargement of what counts as “speech” — necessarily involves its removal, or at least its insulation, from democracy and political accountability. To be legitimate, though, the Court — in his words — “must be controlled by principles exterior to the will of the Justices,” and must seek to find, rather than to create, the Constitution’s meaning. About this, he was right, then and now.

— Richard W. Garnett is professor of law and associate dean at Notre Dame Law School.

LINO A. GRAGLIA
Robert Bork, practicing lawyer, Yale law professor, acting attorney general, solicitor general, court of appeals judge, and failed Supreme Court nominee, was one of the most significant legal figures of his era. The Senate’s rejection of his nomination to the Supreme Court by President Reagan was a national tragedy. He was what came to be called “borked,” victimized by a campaign of scurrilous lies led by Senator Ted Kennedy. All nominees affirm their devotion to judicial restraint, but Bork, his opponents knew, believed it and would have led the Court away from rewriting the Constitution on the basis of their personal, usually liberal, policy choices.

Bork’s scholarship fundamentally affected two of the most important areas of law, antitrust and constitutional law. His 1978 book, the Antitrust Paradox, became the bible of the “Chicago school” of economics approach to antitrust, greatly reducing its scope by arguing that it should be limited to protecting competition in the interest of free markets and consumer welfare, not used, as it had been, to prevent competition in the interest of inefficient small businesses.

Bork regretted that his writings on constitutional law did not have the revolutionary impact of his writings on antitrust. They did not persuade the Court to overrule, for example, Roe v. Wade or Miranda, but his insistence on “originalism,” the view that the Constitution should be taken to mean what it was intended to mean, not what a majority of the justices would have it mean, changed constitutional argument. Its obvious correctness has not kept it from being controversial and the cause of endless alternative theories of “constitutional interpretation” meant to refute it.

A kind and decent man of great integrity and a Marine veteran, he served his country exceptionally well and was unfairly prevented from serving it even more.

— Lino A. Graglia is A. W. Walker Centennial Chair in Law at the University of Texas.



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