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.#ad#
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.
I had the pleasure of spending the last year with Judge Bork — The Judge, as he’s affectionately called by all who knew him — in helping him complete a book chronicling his tumultuous first few months as solicitor general for President Nixon.
We always worked from the sun room of his Virginia home — he in his easy chair, me in mine. He told stories of meeting Nixon, of being mistaken for L. Ron Hubbard while in London, and of arguing in front of the Supreme Court for the first time with almost no preparation.#ad#
I learned quickly how much he was adored by those who worked with him in the solicitor general’s office. We sent out a request asking them to send in memories of their time working for Bob. The stories came pouring in, and one came up again and again: Every morning, without fail, Bob would do the New York Times crossword. But instead of doing the puzzle in some corner of his private office, he would always sit at the far right corner of his couch — the only place in his office that could be viewed from the large and very public anteroom just outside his office.
I got a chance to experience his famous wit. After telling him I had bought an engagement ring but had not yet found the right time to propose, he took to introducing me to house guests as “a man with trouble disposing of his diamonds.”
Our sessions usually ended with a lunch prepared by Mrs. Bork. Cold gazpacho soup was a favorite of his, and one of her specialties. Mrs. Bork wasn’t always around during our sessions, but he always did his best work on days when she was. With her presence came an unmistakable ease in the cadence of his voice, along with a sly smirk as he tried to make her laugh. He always did.
— Mitch Boersma writes from Washington, D.C.
I did not know Judge Bork as well as many of my colleagues, who had studied under him, worked closely with him, or clerked for him. My interactions were limited to occasional small talk at a Federalist Society event or a church function. In those limited interactions, I grew to admire the obvious strength of Judge Bork’s commitment to his dear wife, Mary Ellen. But I will leave to others who knew him better the tributes to Judge Bork, the man.
I can speak of Judge Bork, the legal thinker. Simply put, before I even met him, Robert Bork taught me more about the law in a few hundred pages than any law professor I studied under in law school. His The Tempting of America was a tour de force of conservative legal thinking. Published just as I was about to start law school, the book sought to reintroduce America to her Constitution after decades of its erosion, especially by the Warren court. It succeeded in reframing the constitutional debate for the generation to follow. More than anyone before him, Judge Bork gave voice to originalism in modern constitutional law, teaching that there is no better guide to constitutional meaning than the Framers’ understanding of the Constitution’s text. As he wrote in the book, “The truth is that the judge that looks outside the historic Constitution always looks inside himself and nowhere else.”
Even having been denied the opportunity to sit on the Supreme Court by a vicious partisan battle — one that still reverberates in politics some 25 years later — Robert Bork’s influence on the law cannot be gainsaid. And that influence will continue long after today. Requiescat in pace.
— Shannen W. Coffin, an attorney in Washington, D.C., was the deputy assistant attorney general in charge of the defense of the federal Partial-Birth Abortion Ban Act during the Bush administration.
Robert A. Destro
Judge Robert Bork was a lion. When historians unsullied by the blowback of the culture wars of which he was the first, and most prominent, public victim, take serious stock of the man and his legacy, they will describe a brilliant and passionate advocate for justice and the rule of law. Heaven knows (and, we pray, is now rewarding) his willingness to speak the truth to those in power.
He had a regal presence both on and off the national stage. His style was elegant in its simplicity, and the directness of his message commanded the attention and respect of both admirers and detractors. I watched in awe as he made mincemeat of his detractors on the Senate Judiciary Committee, even while knowing all the while that the character-assassination campaign was likely to sink his appointment.
Robert Bork’s opponents were not sure that they could derail his nomination. As a member of the United States Commission on Civil Rights during the crucial weeks before his confirmation hearings, I sat through many an informal discussion of the threat that Judge Bork posed to advocates for judicial supremacy over the rule of law. They focused, as they had to, on a message as perverse as it was direct: that Robert Bork — a man committed to the principle of equal justice under the law embodied in a written Constitution — could not be trusted to apply that principle in practice.
Many politicians have learned precisely the wrong lesson from the Senate’s refusal to confirm Robert Bork’s appointment: that it is better to be silent, and thought to be guided by principle, than to open one’s mouth and remove all doubt. Like Sir Thomas More, he reminded us in his speeches and writings that “The world must construe according to its wits. This court must construe according to the law.” R.I.P.
— Robert A. Destro is professor of law and director of the Interdisciplinary Program in Law & Religion at the Columbus School of Law at the Catholic University of America.
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.#ad#
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.
ANDREW M. GROSSMAN
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.#ad#
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.
ANDREW C. MCCARTHY
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.
The conservative movement has over the last quarter of a century changed the discourse in the country and countered the arid ideologies of the collectivists and Communists and other leftists. Judge Bork has played that role in our legal system. He was a legal giant; a man of unsurpassed integrity, intellect, courage, and wit. His efforts are far from having all borne fruit yet, but for years he was practically intellectually alone in upholding our constitutional principles. Consider his scholarship and his contribution to the debate and discussion throughout his years as a Yale law professor and well beyond; his service as solicitor general of the U.S.; his service as a U.S. Court of Appeals judge; his powerful works including The Tempting of America and Slouching Towards Gomorrah and The Antitrust Paradox; and his role as a mentor inspiring the best of the next generation in all of these positions. Taken together, these accomplishments show that no one has had more influence in supporting and sustaining the constitutional principles on which one can build a shining city on a hill.#ad#
Personally, I am additionally grateful to him for all that he did since the inception of the Federalist Society to inspire, encourage, and support us whether by speaking, through his wise advice on our Board of Visitors, his invaluable encouragement for our students first founding the society, or simply the many leaders of the society he mentored.
I should mention that he was somewhat famous for being a pessimist; indeed he might say of what I have said that even if it were all true, the outlook is still bleak. But if his occasional bleak forecasts for our future do not come to be, and I don’t think they will, he will have to look to himself for someone to blame. He will have been the leading person in his generation to warn against lawless judging and to warn against it so articulately and powerfully that people actually listened. And they not only listened, but were inspired to counter what once seemed to be an overpowering tide.
In the end he will be remembered for his support of the constitutional principles that helped build America and for his pioneering a jurisprudence of original meaning — interpreting the Constitution according its text — that has had enormous influence in the courts, in the legal academy, and with the American people.
I would also add that Judge Bork was one of the clearest thinkers it has ever been my privilege to meet. He quickly and fearlessly cut to the heart of problems. This proved not to be entirely an asset when he was nominated to the Supreme Court, as the political process sometimes values the ability to be all things to all people, something that Judge Bork never aspired to do. At the end of the day he was remarkably open-minded. If he was confronted with an argument he had missed, his instinct was not to try to hide the ball, but to get to the bottom of the problem.
Finally, today one reporter asked me if there was anything about Judge Bork that most people might not know. Perhaps it is that underneath that beard he was a truly kind and decent man, a mentor to his students and clerks, and very kind and supportive in day-to-day life.
In every way he will be missed.
— Eugene Meyer is president of the Federalist Society.
Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum. For example, he helped demolish the view that having a large market share is by itself a strong indication that a firm has achieved monopoly power.
Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center. Today, even many prominent liberal scholars accept the general framework of “original meaning” originalism defended by Bork, even though they vehemently disagree with him about particular cases.
In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power. Bork occasionally seemed to recognize this reality, but also often argued as if there were no trade-off between originalism and deference. Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.
The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.
— Ilya Somin is a professor of law and editor of the Supreme Court Economic Review at George Mason University School of Law.
“My” judge, the judge I clerked for, Robert H. Bork, passed away this morning. Others can and will address the controversy surrounding his Supreme Court nomination, and even his monumental influence on both antitrust and constitutional law, fields he revolutionized with a short book and a shorter article. What most will miss — and what I will miss most about Judge Bork — was how affable, clever, smart, and funny he was. As I write this, there echoes in my mind one of his favorite responses to an over-the-top introduction at the beginning of a speech: “It is a good thing an introduction is not an affidavit.” (Trust me, to lawyers, and those who know that an affidavit is a sworn statement attesting to the truth, this is very funny.)
I clerked for him in 1983–84, as a 23-year-old fresh out of law school. He had been on the United States Court of Appeals for the District of Columbia Circuit — often called the second highest or most important court in the land — for just two-plus years. Perhaps ironically, when entering Judge Bork’s chambers in the E. Barrett Prettyman U.S. Courthouse in Washington, D.C. (the site of famous trials like those of John Hinckley and Oliver North), then-Judge Ruth Bader Ginsberg’s chambers were to our left, and then-Judge Antonin Scalia’s to our right — although the judges saw each other very little. At the time, he was often mentioned as the “next” Republican Supreme Court nominee, a prospect about which he, predictably, manifested both equanimity and a sense of humor. Although he certainly would have welcomed, and ultimately did welcome, a nomination, he did not feel as if he needed it to have a fulfilling life. (Maybe that is why he was — to his eventual detriment — so direct and honest when questioned by the Senate Judiciary Committee, a mistake no subsequent Supreme Court nominee has made.)#page#
Although he often groused good-naturedly about the fate of a court of appeals judge, “stuck alone in a chambers with three 20-something law-school graduates and two secretaries, writing law-review articles about topics not of my own choosing” (his description of a court opinion), he was unfailingly generous with his time and attention with us, his clerks. My favorite day clerking for him was Super Bowl Sunday, 1984. He had fallen on black ice and broken his shoulder and could not come into work for months. He invited me to his home Sunday morning to discuss an opinion about the Foreign Sovereign Immunities Act involving a claim against Iran. After working for an hour or so, he asked if I wanted a Bloody Mary. Of course, I said yes. Judge Bork took his preparation of mixed drinks extremely seriously. He and his clerks spent hours debating the proper contents of the “Judge Bork martini” — very dry, up, with a twist. The debate centered around the gin — we finally settled on Bombay Sapphire — and how to ensure the proper amount of vermouth. The ultimate verdict: Shake the ice and the vermouth, then pour out the vermouth, and use the vermouth-covered ice to make the gin martini. But I digress — Super Bowl Sunday 1984 was about Bloody Marys, also mixed to perfection. (Sadly, I forget the recipe.)
Until 4 p.m. or so in the afternoon, and many Bloody Marys later, we discussed many things, but particularly, the judge told me his story about the part he played in the Watergate 1973 “Saturday night massacre,” when he was solicitor general. He has since published it, but it was very far from the “hatchet man” stereotype oft portrayed in the press. To the contrary, he said he agreed to fire Archibald Cox because he believed in the president’s power to fire executive-branch employees, which at the time included the special prosecutor. But he offered, even wanted, to resign as well, after doing so. He was persuaded not to resign, in part by William Ruckelshaus, the then–deputy attorney general, because there was then no provision for succession at the Justice Department, and it was unknown what would happen to the Department if all three of its leaders — the attorney general, deputy, and solicitor general — resigned at once. An ex-Marine, he took the hit and endured the ensuing calumny and controversy.#ad#
Judge Bork wore his greatness and wisdom lightly. To many, his appearance, manner, and intellect were intimidating — and certainly did not come across well on television, up against smarmy senators — but to those who bothered to get to know him, he was accessible, witty, perceptive, and likely to say something profound about the state of the world, the law, or the comic “Pickles,” which he loved. Even many who initially opposed his confirmation admitted to me in private in recent years that they regret that he was denied a spot on the Supreme Court. They particularly regretted the hyper-partisan atmosphere that seems to have been ignited by that dispute, and which has lived on and indeed intensified. As for me, I regret not spending more time with him, because every moment with Judge Bork was fun and enlightening. Rest in peace.
— Daniel Troy is a lawyer in Washington, D.C.
ADAM J. WHITE
In reflecting on Judge Bork’s legacy, it is hard to improve upon his own words — specifically, the words with which he described his close friend and intellectual collaborator, Alex Bickel. Speaking in 1979, at his inauguration as Yale’s first Alexander M. Bickel Professor of Public Law, Bork reflected on his late friend’s place in constitutional law’s past, present, and future:
Some incumbents, doubtless, will be in active opposition to Alex’s philosophy, and may disagree with his entire approach. But the chair itself . . . will always remind us and those who come after us of the man, his work, and the tradition which he followed and enriched. That is no small thing.
The same must be said of Bork’s most famous book, The Tempting of America (1990). While there is no Robert H. Bork professorship at Yale — at least not yet, though one suspects that that may soon change — Bork’s summation of the then-nascent theory of “originalist” jurisprudence leaves a similar mark. His authoritative presentation of originalism gave Reagan-era conservative legal scholars a flag to rally around, a foundation to build upon. It remains today to console Bork’s friends, and to confront Bork’s foes.
Because of that book and Bork’s brave stand before the nation in 1987, we now truly do live in “Robert Bork’s America” — but not in the way that Ted Kennedy meant it when he slandered Bork 25 years ago. Today, in Robert Bork’s America,originalismis the dominant rhetoric of constitutional law, such that even liberal legal scholars, from Yale’s Akhil Amar and Jack Balkin to Washington’s liberal Constitutional Accountability Center, present their arguments not in the style of Justice William Brennan (let alone of Ted Kennedy), but of Judge Robert Bork.
— Adam J. White is a lawyer in Washington, D.C. He recently reflected on the 25th anniversary of Bork’s Supreme Court nomination in Commentary.
I knew Judge Robert Bork before I ever met him. As a student, I read about his role in the firing of independent counsel Archibald Cox, was glued to the T.V. set during his 1987 confirmation hearings, and had my eyes opened by his defense of originalism. He taught millions about the Constitution and our republic without ever having to appear at a lectern in a classroom. Through his actions and writings, he shone as a rare public servant of integrity and even bravery, and the most influential conservative legal mind of our age.
But when I first seriously talked with Judge Bork he had returned to where he began: life as a scholar. He had asked me for some advice on speeches that would become a book, Coercing Virtue, on worldwide judicial activism. I read over a few drafts and came by his AEI office to discuss them. I was a little intimidated — I felt as if a giant was dipping his toe into my little pond of international law.
I could not have left his office more at ease or more impressed. He was working away on the draft in his smoke-filled AEI office, writing in long-hand with pencil (I believe). He was determined to get every word, every footnote, and every citation right. He wanted to make sure he fairly described the arguments of his opponents, even when they rarely returned the favor. He did not expect people to agree with him simply because he was the great Robert Bork, but because he was a scholar who had the best theory to explain the most stubborn facts.
Our conversation ranged over the legislative history of a mysterious 1789 Act of Congress, to what John Marshall was really up to in Marbury v. Madison, to whether conservatives could really slow the growth of government. Judge Bork was much amused by the image of my presence on the Berkeley campus; stories flowed of his conservative outpost at Yale in the 1970s. I left our meeting feeling that I had just had a one-on-one seminar with one of the great teachers and scholars of the American Constitution. In the years after, I counted myself as one of his students, though luckily one that never had to worry about getting a grade.
— John Yoo is a law professor at the University of California at Berkeley.