What If Bork had made it to the Supreme Court?
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)