Robert Bork’s last name became a verb in 1987, when, after being nominated by President Reagan to the Supreme Court, he was ferociously attacked as someone who sought to reverse all the gains of the Civil Rights movement (among other things). Bork himself protested at the time that this was a dreadful distortion of his record, but he was defeated, roundly, as the Senate Democrats had warned Reagan they would do. And that is the primary way he will be remembered: by liberals as the confirmation fight that finally stopped (or at least slowed) the advance of the Reagan Revolution’s legal arm, and by conservatives as the confirmation fight that revealed that there was no consensus about what qualified one for the highest court, and that nominations to the Court would hereafter be ideological battles.
There was more to Bork than that, of course. He had a profound influence on anti-trust law, for example, arguing that mergers should be evaluated on the basis of their effect on consumers alone (a viewpoint that ignores the potential political consequences of concentration of market power in a single firm). But what was most interesting to me about Bork was his own ideological evolution, and particularly his turn to a much more substantive political ideology in the years and decades after the defeat of his nomination. His personal evolution paralleled an evolution in American conservatism, and its worth thinking about that movement’s causes and consequences.
Bork, in his earlier writing, considered himself a formalist, and his originalism was driven by the desire for formal rules that could be agreed upon by ideological opponents. He was not unaware, one assumes, that the particular formalism he embraced was also embraced by Southern conservatives in particular for substantive reasons. But the rationale for his conservative jurisprudence was formally neutral.
As an aside, I should note that Bork did realize that some conclusions had to be reached whether or not they fit his formal theory. I remember reading his defense of the result (though not the reasoning of the decision) in Brown vs. Board of Ed in his book, The Tempting of America, and finding said defense distinctly unconvincing. In a nutshell, he argued that with a substantial case history proving that separate was not, in practice, equal, the Court had no choice but either to reverse Plessy and rule all discrimination by race unconstitutional, or to gut the equal protection clause. In effect, the Court had to argue that the original framers of the 14th amendment made a wrong assumption about how segregation would play out, and so preserving their larger intent in framing the equal protection clause required violating their specific intent. This is unconvincing to me, because the debates on the ratification of the 14th amendment plainly contemplate both the continuation of invidious legal distinctions between the races and the use of race-conscious policies for purposes of what we would now call affirmative action. How does Bork know what was the larger intent of the clause was? Moreover, Bork rejected a similar kind of reasoning in his own argument that poll taxes and literacy tests should not be deemed presumptively illegitimate because of their blatant use to reduce the number of African Americans who may vote. Once you start saying we can look at the actual results of segregation, and not just at the formality that separate doesn’t necessarily imply unequal, you’ve let a rather large genie out of the bottle. Which, I should add, is entirely appropriate from my perspective – but it’s not what Bork theory permitted.
In any event, notwithstanding his willingness to pay his respects to certain shibboleths, Bork was defeated in an ugly and polarizing battle. And Bork was deeply embittered by his loss in the Senate, because thought he deserved to be a Supreme Court Justice. But nobody deserves that. Bork allowed himself to become part of a high-stakes ideological battle. By definition, that’s a risky venture. The Senate provided advice in advance of his appointment – we’re not going to confirm this one. The Reagan Administration went forward anyway, ignoring that advice – and they failed to secure consent. So far, so much according to the Constitution, and who first broke the “unwritten rules” is a matter that Democrats and Republicans won’t agree on because they don’t agree on the substantive issue of whether Bork would have been a good or a terrible Justice. But that bitterness – like the bitterness of so many Republicans when Clinton won the Presidency – metastasized into something far more debilitating.
While Bork never repudiated his legal originalism, over time he increasingly inclined toward a political ideology that was far more substantive, and darker. From arguing that liberalism was foolish and short-sighted, undermining the republican character of our government in its zeal to do justice (that’s the thrust of Tempting), he began to argue that liberalism was actively evil, seeking to undermine republican self-government, virtue, and even civilization itself. His dark view of the American trajectory was memorably rebuked by candidate George W. Bush, but his own administration’s grounding ideology very much partook of a sunnier variant of the same kind of Manichean thinking. It’s not an accident that such views do not lend themselves to being restrained by mere formalisms. Thus, today it is self-styled conservatives who are much more willing than not to throw precedent to the wind and wreck our institutions of government for the sake of victory. And thus has what passes for conservatism evolved into the handmaid of radicalism.
I will declare myself here, and say that I am increasingly a realist about these questions, as opposed to a formalist. It is good to see things as they are, and not to pretend to see Platonic forms lurking behind them. Rulings you don’t like are not tyranny – they are losses. Judges are political appointees (at the Federal level – at the state level, some of them are elected). Neither judges nor legislators are immune to political pressure, nor can they be, and neither are they mere conduits for such pressure, unable to stand on principle. There are even situations where the legislature acts as the highest court of the land (in America, in cases of impeachment; in Britain, the Law Lords served this function until 2009). A judge has a formal function – deciding cases – and everything else is a matter of political tradition.
Nonetheless, we need rules – written and unwritten – because agreement on the rules is what makes it possible to accept losing. Those rules must reflect the world as it is, not as we wish it would be. The salient political facts about our world are that Democrats and Republicans are further apart on certain ideological matters – particularly those that implicate the courts – than they used to be, and that neither liberal nor conservative jurists have embraced a true formal originalism - unsurprisingly, because originalism would dictate all kinds of perverse outcomes relative to the current political divisions in the country, ripping up settled law and laying down rules nobody actually wants.
In that context, what can make it possible to accept rulings you don’t like?
It seems to me that what the times require is an ethos of judicial restraint, one that defers to election results rather than aiming to overturn them. That’s a temperament rather than a philosophy or ideology: a reluctance to overrule Congress, a reluctance to extend or overturn precedent. Conservatives complain that in many cases this would mean reaffirming liberal precedents that conservatives have long opposed, but many of these precedents (particularly on economic matters) are ones that deferred to the legislature in the first place. It is peculiar indeed for conservatives who talk about judicial tyranny to complain about these precedents. And if the electoral results repeatedly show support for, to pick a random example, reducing the scope of abortion rights, a deferential Court would respect those electoral facts as well.
What, in this scheme, is the role of the Court? Well, even deference has its limits, and reducing the profile of the Court in national life in itself would require deciding cases, establishing a pattern of precedent that would slowly force the political branches to actually reckon with their own responsibility. But eventually the Court will want something more interesting to do.
The last time the Court decided to withdraw into a posture of substantial deference to Congress was in the New Deal era. At the time, the Court wondered, out loud, what it would do with its time now that it would no longer be second-guessing the Congress’s management of the national economy, and decided that it would focus on questions of participation in the political process, discrimination, and enumerated individual liberties. If a deferential Court becomes itchy – if they need a Carolene Products footnote #4 for our age – the Court might consider revisiting areas where it has been traditionally deferential for a very long time, as they had been for more than a generation since Plessy on questions of racial justice at the time of Carolene Products. One obvious place to look would be the Court’s traditional deference to the Executive on matters related to national security.
That I find it vanishingly unlikely that Robert Bork, were he still living, would agree is more evidence of the degree to which his legal and ideological program had run its course.