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12/23/2012

More on Imagining "Justice" Bork
Michael Ramsey

Michael McConnell at Slate: What if Robert Bork Had Joined the Court?  In part:

Judge Bork’s constitutional vision was grounded principally in the need for judicial restraint—the idea that judges should not overturn the acts of democratically elected legislatures without a firm basis in constitutional text and history ...  The justice who took the seat Bork did not was Anthony Kennedy, who is commonly dubbed a “moderate” because he votes, in different cases, with both the liberal and the conservative wings of the court. Studies of the court’s voting patterns indicate, however, that Kennedy votes more often than any other justice to overturn acts of legislatures both state and federal, whether for progressive gains like gay rights or limiting capital punishment, or conservative causes like blocking Obamacare or striking down campaign finance regulation. He is thus a very different kind of justice than Bork would have been.

Judicial restraint cannot hold unless it has strong and consistent advocates on both sides of the court. The successful left-wing attacks on Bork laid the groundwork for the conservative judicial activism that the left now loudly decries.

Also, at Ricochet, Adam Freedman: Robert Bork's Legacy: We Are All Originalists.

Today, you won't hear a Supreme Court Justice belittle originalism. At the far left of the Court, Justice Breyer will only go so far as to say that "text and history" are not the only tools at a judge's disposal. You'll never hear a Supreme Court nominee declare his or her support for the "Living Constitution." But you will hear nominees praise the Framers and original meaning. In her confirmation hearings, Elena Kagan went out of her way to stress that the justices should apply original meaning whenever feasible -- "we are all originalists" she said.