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12/21/2012

Jack Balkin on Robert Bork
Michael Ramsey

There has been much commentary on the passing of the great Robert Bork -- more that it would be possible to link to -- but this one is especially good: at Balkinization, Jack Balkin: Robert Bork and the Contingencies of History (imagining that Bork instead of Scalia had been nominated for the 1986 Supreme Court vacancy).

UPDATE:  Ilya Somin comments on Balkin here

SCOTUSblog has a roundup of Bork-related commentary here and here.

Damon Root makes this important point at Reason:

Although Bork’s emphasis on judicial deference to majority rule has become less influential on the right in recent years, due in large part to the powerful criticisms of his work made by legal scholars such as Roger Pilon of the Cato Institute and Randy Barnett of the Georgetown Law Center, Bork’s approach still has its adherents. His influence was demonstrated most recently in Chief Justice John Roberts’ opinion upholding the Patient Protection and Affordable Care Act, which Roberts framed as a Borkian exercise in judicial deference.

An interesting question in the spirit of Jack Balkin's post is whether Justice Bork would have gone along with  Scalia and Thomas' more aggressive use of originalism in cases like NFIB v. Sebelius, Heller, McDonald and Citizens United, or whether he would have pursued something closer to the position advocated by J. Harvie Wilkinson.  That is, once originalism and deference began to point in different directions, which would have predominated in Justice Bork's jurisprudence?