It’s possible that that day marked America’s fundamental turn in the direction that culminated in the Supreme Court’s decision today. On October 23, 1987, the U.S. Senate rejected the Supreme Court nomination of Judge Robert Bork, by a vote of 58 to 42. I’m not saying merely that if Bork hadn’t been rejected, President Reagan wouldn’t have appointed Justice Anthony Kennedy, who wrote today’s opinion: I think that if Bork had been on the Court, that platform would have given him an outsized opportunity to influence America’s cultural and constitutional discussion – and that America would have been significantly less likely to embrace the sort of the change the Court affirmed today.
History is of course fiendishly complicated, and this sort of counterfactual is impossible to prove. What if, instead of my hypothesis, the American people came to dislike Justice (or eventual Chief Justice!) Bork intensely, and as a result moved even faster in the direction of anti-originalist “living-Constitution” views? But I submit that, in my experience, even legal scholars who are in strong opposition to Bork’s views recognize that he would have been one of the most ferociously intelligent and effective justices ever to serve on the Court. He would, in my opinion, have been a game-changer.