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.


Fred Raymond said...

“Monopolization is only problematic, he argued, when it enabled monopolists to charge monopoly prices.”

Which, aside from a regulated utility, is about 100% of the time. I’d ask Mr. Bork why any enterprise would even seek to achieve monopoly if not to be able to charge a monopoly price. That's the goal.

Sam Rickless said...

You are very kind to Robert Bork, too kind, it seems to me. The fact that Bork was friendly and engaging with you and others who did not share his political views does not by any means entail that he had no serious character flaws. Indeed, judging from his books, he had plenty. The main flaw is an overweening arrogance and dismissiveness of what are perceived to be intellectual inferiors. Pages and pages of his post-confirmation-hearing books are laced with remarks that reveal this attitude. Here is just one example taken from his book, *Slouching Towards Gomorrah*:

"In the first-year course on constitutional law, I led one student through a conventional analysis of an aspect of the Fourteenth Amendment to the Constitution, in which he reached the only coherent and legally non-controversial conclusion possible. (I think it was that the amendment prohibited only official and not private action.) About ten minutes later he raised his hand, was recognized, rose from his front-row seat, turned to his fellow students, and said, "I want to apologize to the class for reaching the conclusion I did. I must have sounded like Attila the Hun." He resumed his seat and waited for me to proceed with whatever topic was then under discussion. The class showed no sign that anything unusual had happened. Neither then nor afterward did he explain what was wrong with the reasoning that led to the conclusion; the latter was just not acceptable politically, and that was that. When last heard of, he was a professor of law. No doubt he is indoctrinating his students in non-Tatar constitutional theory."

On one way of reading this, what the student is really saying is that Bork's argument should be treated as a reductio of the "conventional" principles that Bork is taking for granted. Bork is so intellectually blind that he reads the student's opposition to his argument as no more than a symptom of political correctness. What blinds Bork is his arrogance. He is so convinced of his own intellectual superiority that he accuses a former student who is likely far from an intellectual lightweight (it is not easy to become a law professor) of indoctrinating his students, even though the most potent form of indoctrination involves the very kind of unselfreflective presupposition In which Bork himself engages.

Bork belongs to a generation that was warped by its revulsion at the intellectual and violent excesses of the sixties. I say "warped", because a balanced approach to the history of that period would recognize that there was something deeply wrong with the country in the 50s and 60s, including rampant racism, sexism, anti-semitism, political and economic inequality, homophobia, and a pathological anti-Communism. Bork did not see any of this. He was so deeply affected by student demonstrations, by the intimidation of and threats to faculty, by the episodes of arson and bombing perpetrated by the most violent factions of the left, that he could not see that the institutions he defended and of which he was a member were deeply unjust. He interpreted the understandable soul-searching of his colleagues at Yale and elsewhere as craven capitulation to intimidation. Blindness is an intellectual, and sometimes a moral, flaw; *arrogant* blindness, especially when self-serving, is simply monstrous.

Paul Scott said...

"I’d ask Mr. Bork why any enterprise would even seek to achieve monopoly if not to be able to charge a monopoly price. That's the goal."

Not at all.

Microsoft had a monopoly on Operating Systems and Internet Browsers. The Browser was then and always has been, free. The OS's have never been exceptionally expensive and, in fact, have not changed much in price. that is, I can buy Windows 8, today, for about the same price I could have bought Windows 95 back in 1995 when MS had an OS monopoly.

Charging monopoly rent is not the only reason to have a monopoly. It is not even a particularly good one.

David Ricardo said...

The idea that Mr. Bork would have supported Brown is one of the more amazing statements in this entire piece, which has quite a lot of amazing statements.

To make such a statement ignore the entire raison d'etre of Mr. Bork, namely that the legislature, particularly state legislatures have virtually unlimited authority and are constrained only by those acts that are expressly prohibited in the Constitution. Had Mr. Bork been on the court in 1954 there are few things more certain than that the Brown decision would have been 8 to 1.

Unknown said...

I once had the pleasure of having a pint of guinness with Lord Bingham of Cornhill, a very great English judge - the only one to have been Chief Justice, Master of the Rolls, and Senior Law Lord. He was instrumental in bringing about the Human Rights Act 1998 (which finally gave the UK a bill of rights for individuals) as well as in abolishing the House of Lords and replacing it with a Supreme Court. In other words, not a man averse to American ideas and institutions.

Someone asked him whether he would support something like the Senate confirmation hearings for the UK Supreme Court. He took a sip from his glass of house red, fixed us with his (unusually dark) blue eyes, and said

"Over my dead body."

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