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12/28/2012

What If Bork had made it to the Supreme Court?
Mike Rappaport

Various commentators have discussed what the constitutional world might look like now if Judge Bork had been confirmed as a Supreme Court Justice.  Jack Balkin writes:

Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor and Solicitor General).

 I am a great admirer of Justice Thomas and so I think there is much to be said for Jack’s view.  But this view also misses something.  As I said in my earlier post, Bork was a great innovator – even more so than Justice Thomas – and therefore we don’t know what new approaches he might have developed on the Supreme Court.  Judge Bork’s later writings were less freedom oriented than I would have liked and so it is possible his innovations would have been unattractive.  What is more, some of his most interesting ideas – that promoted freedom in a way – I found to be problematic on legal grounds.  But with an innovator like Bork, you just never know.

(Cross Posted on the Liberty Law Blog)