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10/13/2012

Adam White: Bork Won; Hadley Arkes: No He Didn't
Michael Ramsey

For Commentary magazine, Adam J. White writes: Bork Won (on the 25th anniversary of Judge Bork's defeat by the Senate).

At NRO, Ammon Simon asks Did Bork Win?, with a link in turn to Hadley Arkes: The Loss of Robert Bork.  Professor Arkes writes in part:

Other nominees to the Court have been defeated for confirmation, but none has vindicated himself as grandly as Bork, or made his adversaries look so small, as his writings drew a wider and wider audience, and his teachings gained a new army of adherents among young lawyers.

One fine lawyer and writer, Adam White, has written recently in Commentary that Bork had won: that his theory of "originalism" had prevailed in judicial interpretation. I’m afraid not. It’s a longer story, but there are now too many theories of "originalism," at war with themselves, and they are now being taken over and molded by the Left.

And on the cases of greatest moment, such as Obamacare, "originalism" has made little difference. The sober truth of the matter is this: If Robert Bork had taken his place on the Court, Roe v Wade would have been overruled in 1992. His replacement, Anthony Kennedy, has been an active engine in extending the premises of gay rights, giving grounds for the courts to install same-sex marriage in Massachusetts and other states. And he has brought us now to the threshold of the Court imposing same-sex marriage on the country.

I think whether Bork "won" depends on what one thinks "winning" means.  If it means that Bork's interpretive philosophies (or preferred political outcomes) rule the Court, then as Professor Arkes says, he did not.  If it means that his interpretive philosophies have greater resonance and a broader following among judges, commentators and academics than before, then I think it is a win.  And contra Professor Arkes, I think the spread of versions of originalism beyond the political right is evidence of that victory, not evidence against it.

(But, I can't help adding -- with nothing against Judge Bork but perhaps some bias in other directions -- I think any "wins" in this matter are attributable substantially to Justices Scalia and Thomas).