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10/24/2017

Mark Pulliam on Judge Bork and DC v. Heller
Michael Ramsey

At Liberty Law Blog, Mark Pulliam asks (on the 30th anniversary of the Senate's rejection of Judge Bork for the Supreme Court), would Bork have voted with Justice Scalia in DC v. Heller?  His answer -- maybe not:

Why do I suggest that Bork might have voted differently from Kennedy? As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject “off limits” from majoritarian rule. The Second Amendment, with its odd phraseology (“A well regulated Militia, being necessary to the security of a free State”), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an “ink blot”) or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.” While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.  ...

It is possible that a Mr. Justice Bork, had he read the briefs and listened to the oral argument in Heller, would have been persuaded to join Scalia’s majority opinion—as in fact Anthony Kennedy did. Musing about an issue in a broadly focused book is not the same as reaching a decision in a concrete case. Still, Bork was a clear thinker who was stubbornly committed to principle. For decades, he decried judges’ overriding democratically enacted laws based on fanciful interpretations of vague constitutional text in their pursuit of  a  policy result they find desirable.

I think this is a plausible account.  Even though Scalia and Bork were roughly contemporaries, Bork was much more influenced by the older versions of originalism that reacted to the overreaches of the Warren Court. Scalia represented an early version of the more modern originalism -- he was more committed to applying the Constitution's original meaning than he was to judicial restraint, despite his frequent rhetoric celebrating democracy.  As the post indicates, there are a range of Scalia opinions in addition to Heller that Bork might well not have joined.