Wednesday, December 19, 2012

Robert Bork's Multifaceted Legacy

By Mike Dorf

The news came today that Robert Bork passed away.  Consider this an affectionate if quixotic eulogy from one who thought Bork was wrong about nearly everything.

Looking back on Bork's long career, there is much with which to find fault. He opposed what became the 1964 Civil Rights Act, even saying it was based on a principle of "unsurpassed ugliness."  When others refused, Bork fired Archibald Cox to execute the Saturday Night Massacre.  His early work in antitrust law played an important role in extinguishing the portion of that body of law that focused on political economy, thus helping to pave the way for the WalMartification of America.

In all of these and other matters, Bork displayed a tone-deafness for the struggles of the oppressed, but--and here is the tribute--I believe that it all came from a set of principles rather than any meanness of spirit.  I only met Bork once, nearly 16 years ago, when Ted Koppel pitted us against one another on Nightline to debate a then-pending Supreme Court case.  On-camera we had a spirited discussion and off-camera Bork was friendly and engaging. My friends who knew him well, including one who clerked for him and others who were his colleagues at Yale, uniformly spoke highly of him personally. To the extent that Bork has become a bogeyman for liberals, it should only be because we strongly disagree with the values he championed, not because of any character flaw.

Rather than rehash the debates in which Bork engaged, in the balance of this post I'd like to point to a few of the many ways that he shaped the legal landscape we see today.

I have already mentioned Bork's views about antitrust but it's worth elaborating the point. Prior to the publication of Bork's The Antitrust Paradox, economic efficiency was only one value the Sherman and Clayton Acts were thought to serve. Bork argued that bigness per se is not undesirable. Monopolization is only problematic, he argued, when it enabled monopolists to charge monopoly prices.  In law, that view has triumphed over the Brandeisian progressive alternative almost completely, even as politicians continue to pay lip service to "small business."

The Senate's rejection of Bork's nomination to the Supreme Court has had important ramifications along three dimensions.

1) Most directly, it led to Justice Anthony Kennedy's tenure on the Court (after the brief distraction of the nomination-then-withdrawal of Judge Douglas Ginsburg).  Kennedy has been considerably more liberal than Bork would likely have been on abortion, the death penalty, free speech, gay rights, and probably quite a few other subjects.  It is impossible to know all of the ways in which history would have unfolded differently if Bork rather than Kennedy had sat on the Court for the last quarter of a century, but the differences would certainly have been substantial.

2) Bork's failed nomination had an important impact on the nomination process itself.  No nominee since Bork has been as forthcoming about his or her views as Bork was.  Meanwhile, presidents of both parties have generally sought confirmable justices, which means a number of things.  At the most trivial level, it's now considered useful to have someone who will look good on tv.  (John Roberts is the model here.)  More substantively, presidents seek someone without a potentially damaging paper trail.  Notably, three of the last four Democratic nominees were law professors for substantial portions of their careers, but they wrote about subjects that the public would deem boring: civil procedure (Ginsburg); administrative law (Breyer); and executive power (Kagan).  Kagan was the most vulnerable but because she became a dean so early in her career, she wasn't very vulnerable, with only a modest paper trail--and she performed so well that it didn't matter.  Meanwhile, both Democrats and Republicans have sought appeals court judges whose records would be largely boring as well.  Alito and Sotomayor are the best examples here.  Souter, Roberts and Thomas were appeals court judges only very briefly but that still meant that they came before the Senate "pre-vetted"--a process that has worked reasonably well, except in the case of Thomas, when it didn't work at all.  Overall, I think pretty well of the current Court but I also think that as a result of the Bork experience, it is an intellectually bland Court.  Notably, the most interesting Justice--Scalia--is also the only member who joined the Court before the Bork hearings.

3) To a degree that I think is not sufficiently appreciated among academics, Bork's confirmation hearing gave rise to what is sometimes called "new originalism"--the notion that the goal of originalist judging is not all that different from living Constitutionalism.  Writing in the New York Review of Books shortly after the Bork hearing (in an essay later republished as a book chapter), Ronald Dworkin astutely observed that the intellectual move that Bork employed to show that his methodology would have allowed the right result in Brown v. Board of Education, would do so only by sacrificing what was previously thought to be a key feature of originalism: its claim to be constrained by history.  Bork--in both his confirmation hearing and in The Tempting of America, which he wrote shortly thereafter--defined the original understanding of equal protection at such a high level of generality as to accommodate Brown.

Both the originalist "move" and the critique have been followed more or less since then: New originalists define original understanding broadly to show that originalism is not so scary, but then critics note how many of these new originalists then turn around and invoke a narrower form of originalism when it suits them.  Peter Smith and Tom Colby have made this point generally; I made it about Steven Calabresi not that long ago; Dworkin beat us all to the punch with respect to Bork.  Indeed, Dworkin himself was simply piling on to the critics who had already accused Bork of a "confirmation conversion."

My point here isn't so much that Bork manipulated original understanding or even that the original understanding is inherently manipulable.  My point is simply that the aspect of the Bork hearings that was--from a theoretical perspective--most interesting, captured much of what we constitutional theorists would spend the next quarter century arguing about.  There have been variations, sure.  E.g., some of the contemporary new originalists appear to have less of an ideological ax to grind than Bork did.  But the basic moves were set in those late summer 1987 days when Arlen Specter went toe-to-toe with Robert Bork on questions of constitutional interpretation on national television.  May they both rest in peace.