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09/04/2018

Mark Pulliam on Robert Bork
Michael Ramsey

At City Journal, Mark Pulliam: The Original Originalist: Thirty years after Robert Bork was denied a seat on the Supreme Court, his formidable legacy lives on.  From the introduction:

Bork’s defeat [for the Supreme Court] was a watershed event in judicial politics, and reverberates still—it prevented a conservative realignment of the Court (due to the appointment of moderate Justice Anthony Kennedy in place of Bork) and forever transformed the judicial-confirmation process into an ideological gauntlet. No High Court nominee would ever again be as forthright, or be denied confirmation for such transparently ideological reasons. Ironically, the Senate’s rejection of Bork—due to his steadfast advocacy of judicial restraint and sticking to the constitutional text—did not prevent the ascendancy of his brand of “originalist” constitutional theory and, in fact, may have bolstered it, by giving him a bully pulpit that he would use effectively for the rest of his life.

The saga of Bork’s confirmation hearing—the most contentious in the nation’s history and one of the riveting political dramas of modern times—has begun to recede from public consciousness. Thirty years later, and more than a half-decade after Bork’s 2012 death, it’s worth recalling those events and the man at the center of them.

And from later on:

Rejecting the idea of judges legislating from the bench, Bork believed that judges should instead play a limited role: to enforce the Constitution as written. This approach—often expressed as “judges should interpret the law, not make it”—has, over time, been referred to variously as strict construction, original intent, interpretivism, judicial restraint, textualism, and originalism. The labels, and even the fine points of application, are less important than the general orientation.

In Bork’s view, the Constitution derives its moral authority, as law, from the fact that the states ratified it. Accordingly, its text should be interpreted as it was understood at the time of its adoption. Judges have no warrant to expand upon the constitutional text—or to invent new rights—just because they favor the result in a particular case. Judicial power, unless constrained by the Constitution’s original meaning, will become excessive, usurping power properly reserved to the elected branches, or the people. When judges exceed their proper role, by recognizing “liberties” not credibly drawn from the constitutional text or history, they diminish citizens’ most important freedom: the right to govern themselves in a representative democracy.

Bork’s position, consistent with Alexander Hamilton’s conception of the judicial role in Federalist 78, seems as though it shouldn’t be controversial, but it directly challenged the dominance of the legal professoriat and the liberal interest groups that benefited from judicial activism. As Bork framed the issue: “Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.” While Bork was not the only conservative in legal academia, he was certainly the most influential—and articulate—advocate for originalism. From its inception in 1982, Bork was also conspicuously associated with the Federalist Society, a conservative legal organization, both as a speaker and as cochairman of its board of visitors.