Remembering Judge Bork
A tribute


Judge Robert Bork was the man who made antitrust law interesting, and then very much uninteresting — an underappreciated legacy that alone justifies tribute. From the Progressive Era through the 1970s, antitrust law was the lever by which the government exercised control over broad swathes of the private economy. Every aspect of business — from investment to product development through sales — was prey for regulators promoting the false ideal of managed competition. The result: economic sclerosis, as lumbering conglomerates negotiated business strategy with their assigned bureaucrats, in exchange for protection from market forces, and the courts lectured men of business on the rules of their trade.


And then came Robert Bork and ultimately his book, The Antitrust Paradox (1978). In engaging and lucid prose — and remember, this is a work of law and economics! — Bork laid out the fundamental paradox of the Progressive vision, how excessive government intervention to protect competitors inevitably destroyed consumer welfare. The critical response, of course, was furious, but it also fell flat, for the simple reason that Bork was right and that antitrust law had become entirely divorced from its modest origins.

The next two decades witnessed the dismantling of the antitrust Leviathan and the emergence of a more agile, consumer-focused antitrust law in the Borkian vision. By the time of The Antitrust Paradox’s second edition in 1993, the book’s analysis was of primarily historical interest. In competition law today, though there are differences, all follow Bork. We owe some measure of our economic freedom and our economic strength over the past decades to Judge Bork’s work. That cannot be overstated. But it is only because that work achieved resounding success that it might be overlooked. It should not be.

— Andrew M. Grossman is a Visiting Legal Fellow at the Heritage Foundation and litigator at BakerHostetler LLP.

“What we all ‘know’ is wrong,” wrote Robert Bork in The Antitrust Paradox. For those who want to have influence, especially lawyers, the pressure for conformity is strong. For academics, the pressure for originality often leads to contrarianism for the sake of contrarianism. To have a message that is contrary and influential and maybe even true is rare enough. To be a teacher whose often contrary messages are so intellectually exhilarating that students cannot resist the temptation to think hard, and maybe even change their minds, is rarer. To be a public man whose challenging ideas, refracted through the imperfect glass of law and politics, actually change history, is as rare as can be. Robert Bork met all those descriptions, and did much more, seemingly without effort. His scholarship transformed both fields in which he worked, antitrust and constitutional law. He was the kind of teacher students talk about decades later. His work as solicitor general of the United States and circuit judge changed the course of American law and the American constitutional system. And he did all that as if it were another day’s work. As a later scientist said of Newton’s ability to devise mathematical proofs using the cumbersome methods of classical synthesis, his work makes us “wonder what manner of man he was who could wield as a weapon what we can scarcely lift as a burden.” But to say that Judge Bork was a great man is to say something so obvious, it seems almost to go against the principle that circular arguments should be avoided, not because they’re wrong, but because they’re not useful. So Robert Bork told us in Constitutional Law.

— John Harrison is a professor of law at the University of Virginia who clerked for Judge Bork on the U.S. Court of Appeals in Washington, D.C.

Judge Robert Bork was a very good man. He spent his professional life on and directed his forceful intellect to the preservation of human dignity. That’s what respect for the rule of law is ultimately about, and it is in this sense that Judge Bork’s pioneering work on originalism, constitutional law, limits on government power, and judicial restraint was directed at improving the human condition. Later in his life, Judge Bork sought to tackle issues of cultural decline, recognizing that the exceptional American experiment in self-government would not last long, and ultimately would not benefit the human soul, if we as a country abandoned personal responsibility and other basic virtues. Judge Bork was a good and faithful servant to his country, and to God.

— Leonard Leo is executive vice president of the Federalist Society.

It almost goes without saying, though it deserves to be said again and again, that Judge Robert H. Bork was possessed of one of the greatest legal minds of our time — indeed, of any time. More than anything else, he was renowned for the theory that while people may evolve, documents do not; therefore, to apply the law faithfully, rather than reinvent the law willfully, judges are obliged to construe it to mean what it was understood to mean at the time of its adoption. That made Judge Bork the champion not merely of “originalism” but of liberty. His was a jurisprudence for a free, confident, self-determining people — a people whose Constitution enables them to govern themselves as sovereigns, not to be ruled by judicial whim.

One of the great losses in the modern history of the United States is the debacle in which the nation was deprived of his service on the Supreme Court. A few years back, when A Time to Speak, an anthology drawn from his decades of trenchant writing, was published, I made this observation in a review for The New Criterion:

How different might things be today had the U.S. Senate honored two centuries of tradition and confirmed the impeccably credentialed nominee who was instead mugged by its Judiciary Committee? The question cannot be addressed without accounting for a silver lining. The Senate’s abysmal performance denied the nation a justice of towering intellect and abiding fidelity to the idea that is, or was, America. Yet it also unleashed Bork to pursue his true calling: He has become an unparalleled legal, moral, and ethical philosopher in a time dominated by a law-culture corrosive of moral and ethical moorings.

How fortunate we are, in a time when we need his insight more than ever, that Judge Bork has left behind a trove of his wisdom. Requiescat in pace.

— Andrew C. McCarthy, a former federal prosecutor, is author of Spring Fever