A brilliant American jurist — who would be a former Supreme Court justice but for an ugly political circus in the Senate — has died. Judge Robert H. Bork, a friend to many at National Review and a contributor, is remembered by friends, colleagues, and students.
A legal giant passed today. Judge Robert H. Bork was one of the central figures responsible for the rise of originalist constitutional interpretation. In his academic work and legal books for broader audiences, most notably The Tempting of America, he explained how tethering constitutional interpretation to constitutional text, as understood at the time of its adoption, enhanced self-government, preserved fundamental constitutional values, and limited judicial overreach. His work helped define the terms of the debate, and helped inspire legions of younger academics to pursue originalist scholarship. Any legal scholar would be happy leaving an intellectual legacy of this magnitude. Lest we forget, then-professor Bork was also a giant in the field of antitrust law. His seminal book, The Antitrust Paradox, explained how seemingly “anti-competitive” conduct could, in fact, enhance consumer welfare and urged courts to weigh such consumer benefits against the threats posed by monopolies and cartels. This book revolutionized the study of antitrust law and has had a lasting influence on how federal courts evaluate antitrust claims. No doubt many obituaries will obsess over his role in the Nixon administration’s “Saturday night massacre” and his failed Supreme Court nomination, but his intellectual contributions will remain long after those political battles are forgotten.
— Jonathan H. Adler is Johan Verheij Memorial Professor of Law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.
Robert Bork, with his bear-like frame, was one of the most sensitive and dearest of men, and to his friends unrelentingly loyal. The news surrounding his death will be marked, first, by the controversy over his appointment to the Supreme Court and the shameless display at the hearings over his confirmation. It is hard to recall any other case in which the failure of confirmation eventually brought the candidate to a larger stature in the field of law — and an even warmer place in the hearts of that portion of the public that came more and more to know him.
He and I would engage in bantering over natural law. He was famously dubious about the appeal to moral reasoning in the natural law, and my retort to him was that he was indeed one of the great “natural lawyers” in the country: He would persistently scoff at the natural law while persistently leaving us elegant examples of how it would be done. On the other side, some people tutored in natural law bore doubts about him when he was nominated to the Court, and I told them, using an old line, that “he will make for a better soup”: He would bring the writing on the Court to a higher level by the acuity of his questioning, testing severely — and aptly — the arguments put before him; and by lifting the level of writing — and at the same time the quality — of the judgments. If Robert Bork had been on the Court, Roe v. Wade would have been overturned at least by 1992 with Planned Parenthood v. Casey. We would not have had the cases that, step by step, abjured any tenable ground for maintaining, in the law, any moral reservations about the homosexual life. We would not have had Romer v. Evans (1995) and Lawrence v. Texas (2003), the opinions written by Justice Anthony Kennedy, the man who eventually went to the Court in place of Robert Bork. It was on the basis mainly of Lawrence v. Texas that the supreme judicial court in Massachusetts, only months later, swept past the standing laws on marriage and installed same-sex marriage. Those cases, and the series of decisions that sprung from them, have now brought us to the threshold of the cases that could install same-sex marriage throughout the country. For Joe Biden and the cast of characters who debased themselves during the hearings over Robert Bork, the victory they scored turned out to be the gift that never stops giving. The world of law that threatens us now is the world they shaped.
To live at the beginning of a second Obama term is a prospect that has many of our friends looking to the next world — or to a better one than this. Some might be secretly thinking that, if Bob were thinking of checking out, this might not have been a bad time. But for the rest of us, it will be harder without him — harder without his sardonic wit, his intellectual play showing the vacuity of the arguments put before us; and harder to bear without his courage and laughter. Our love goes out today to Mary Ellen, and to Bob’s children; in the aftermath, we’ll all be clinging to each other.
— Hadley Arkes is a senior fellow of the Claremont Institute and Edward Ney Professor in American Institutions at Amherst College.