Robert Bork's career and legal philosophy offer insights into the conservative interpretation of the U.S. Constitution. His journey from academia to significant judicial roles demonstrates his commitment to originalism. By examining his contributions and controversies, we can understand the impact of his views on American law and governance.

Robert Bork's Early Career and Legal Philosophy

Robert Bork's legal journey began with his law degree from the University of Chicago, where he was influenced by Aaron Director's free-market teachings. After graduating, Bork practiced law with Kirkland & Ellis before joining Yale Law School's faculty in 1962.

At Yale, Bork became a prominent conservative voice, especially regarding antitrust laws. His approach judged corporate mergers based on consumer welfare rather than their impact on competitors. His 1978 book, The Antitrust Paradox, argued that many mergers benefitted the public by reducing prices. His ideas eventually shaped how federal antitrust laws were interpreted by the Supreme Court.

Bork's influence extended beyond antitrust issues. His 1971 lecture at Indiana University criticized the Supreme Court's decisions, particularly opposing Griswold v. Connecticut for recognizing an unwritten right to privacy. Bork believed this ruling lacked support from the Constitution's text or history.

In March 1973, Bork became Solicitor General under President Nixon. He argued many crucial cases before the Supreme Court. His tenure faced challenges, notably the Saturday Night Massacre during the Watergate scandal.

President Reagan appointed Bork to the U.S. Court of Appeals for the D.C. Circuit in 1982. Bork's time here further demonstrated his advocacy for judicial restraint and originalism. He believed judges should interpret the Constitution based on its original meaning, not evolving societal norms.

Bork opposed judicial activism, arguing judges should not create new rights based on personal preferences. Instead, they should defer to elected branches or the people, preserving citizens' right to self-governance.

As a teacher, scholar, and judge, Bork's views consistently clashed with those of liberal legal theorists. Yet, his arguments for originalism grew influential, shaping legal discourse for years to come.

Bork's Role in the Watergate Scandal

On October 20, 1973, President Nixon ordered Bork, then Solicitor General and acting Attorney General, to dismiss Special Prosecutor Archibald Cox. This directive came after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to carry out the dismissal and resigned.

Bork's compliance with Nixon's order was polarizing. He believed that by accepting the President's directive, he was averting a larger constitutional crisis. Bork maintained that his decision allowed the Special Prosecutor's office to continue investigating and led to Cox's replacement with Leon Jaworski, whose pursuit of the case uncovered critical evidence.

However, Bork's decision had significant consequences. Many viewed his compliance as complicity in obstructing justice, casting doubt on his judicial philosophy of adhering to the Constitution's original meaning.

"I believed then and I believe now that, as the only official capable of executing the President's order, I had no choice but to obey it." – Robert Bork¹

This event greatly influenced public perception of Bork. Despite his assertion that his actions served the nation's best interest, the episode was frequently cited during his later Supreme Court confirmation hearings. Critics argued that his Watergate decision reflected a potential to yield to political pressure rather than uphold judicial independence.

Bork's actions during the Watergate scandal highlighted his complex character as a jurist. He handled an intense political situation while remaining committed to his interpretation of constitutional and institutional responsibilities. This episode became a significant factor in his later Supreme Court nomination, influencing senators' perceptions and the broader debate on judicial philosophy and independence.

The 1987 Supreme Court Nomination

In 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court, sparking a contentious confirmation battle. Bork was nominated to fill Justice Lewis Powell's vacant seat, which conservatives saw as an opportunity to shift the Court to the right.

The nomination was met with strong opposition from Senate Democrats and liberal interest groups. Senator Ted Kennedy delivered a critique of Bork on the Senate floor, depicting "Robert Bork's America" as a society deprived of fundamental rights and freedoms.

The Senate Judiciary Committee hearings began on September 15, 1987. Bork, an advocate of originalism, argued that Constitutional interpretations should be fixed to the framers' original intentions and that the judiciary should not create new rights not explicitly stated in the Constitution's text.

During the hearings, Bork faced rigorous questioning from Democratic senators. They scrutinized Bork's extensive record, focusing on his views on:

• Civil rights
• Abortion
• The judiciary's role

Senators worried that Bork's originalist stance could lead to overturning significant rulings such as Roe v. Wade and could weaken established civil rights protections.

Bork's responses reflected his deep understanding of constitutional law, but his matter-of-fact manner failed to sway public opinion in his favor. The hearings also examined Bork's role in the Watergate scandal, which opponents used to question his independence and suitability for the Supreme Court.

The Judiciary Committee recommended against Bork's confirmation by a vote of 9-5. The full Senate rejected Bork's nomination on October 23, 1987, by a vote of 58-42, marking the largest margin of rejection for a Supreme Court nominee in history.

The rejection of Bork's nomination had far-reaching implications. It prevented a significant conservative shift on the Supreme Court and transformed the judicial confirmation process into an arena of ideological contention. This moment spurred the mobilization of conservative and liberal groups to influence future nominations, contributing to the highly politicized landscape of Supreme Court confirmations that persists today.

Despite the setback, Bork's legacy as a proponent of originalism has endured. His writings and teachings continued to shape conservative legal thought, influencing future generations of jurists and scholars.

Bork's Originalist Interpretation of the Constitution

Originalism, as championed by Robert Bork, proposes that the Constitution should be interpreted based on the original understanding of its text at the time it was written. This legal philosophy rejects the idea that the Constitution evolves with changing societal norms.

Bork argued that judicial decisions should stem from the Constitution's explicit words and the historical context in which those words were written. He believed that giving judges the power to interpret the Constitution based on contemporary values could lead to judicial activism, which he saw as a threat to democratic governance.

Bork applied his originalist viewpoint to various constitutional issues:

1. First Amendment: Bork contended that the First Amendment's protection of speech was primarily intended to safeguard political discourse. Therefore, other forms of expression, such as obscenity or pornography, did not deserve the same level of protection.
2. Right to Privacy: Bork disagreed with the Supreme Court's decision in Griswold v. Connecticut (1965), which recognized a constitutional right to marital privacy. He argued that the right to privacy was not explicitly found in the Constitution's text.
3. Civil Rights: While Bork supported the ruling in Brown v. Board of Education (1954) that ended racial segregation in public schools, he opposed the broader judicial trend of resolving civil rights issues through judicial mandates. His views on the Civil Rights Act of 1964 evolved over time, acknowledging its role in addressing systemic injustices while maintaining his stance against judicial activism.

Bork's influence on later legal scholars and justices is significant. His originalist principles became foundational to the conservative legal movement and continue to shape the interpretive approaches of many jurists today. Justices like Antonin Scalia and Clarence Thomas have often echoed Bork's views, emphasizing the importance of the Constitution's original meaning in their judicial philosophies.

By emphasizing judicial restraint and deference to the Constitution's explicit provisions, Bork's legacy continues to impact legal thought, encouraging adherence to the framers' vision of American governance.

Impact and Legacy of Bork's Judicial Philosophy

Robert Bork's judicial philosophy, particularly his advocacy for originalism, has significantly influenced the Supreme Court and American law. Bork's vision of constitutional interpretation, which emphasizes fidelity to the text as understood at the time of its drafting, has become a dominant force in contemporary judicial discourse.

The ascendancy of originalism in the Supreme Court is a prominent effect of Bork's influence. Justices like Antonin Scalia and Clarence Thomas, inspired by Bork, championed originalist principles during their tenures. This has led to landmark decisions rooted in originalist thought, such as Scalia's majority opinion in District of Columbia v. Heller (2008), which reaffirmed an individual's right to bear arms based on an originalist reading of the Second Amendment.

The rise of originalism is also evident in the Court's approach to issues like abortion, gun control, and religious freedom. The recent decision in Dobbs v. Jackson Women's Health Organization (2022), which overturned Roe v. Wade, reflects a judicial philosophy aligned with Bork's originalism. The majority opinion, emphasizing historical precedent and textual interpretation, signals a return to strict adherence to the Constitution's original understanding.

Criticisms of Originalism

• Rigid and may fail to account for evolving societal norms
• Can overlook progress made since the Constitution's inception
• Potential for selective readings of history
• May not adapt to contemporary challenges

Despite these criticisms, the appeal of originalism remains strong. It provides a framework that many find attractive due to its perceived objectivity, offering an antidote to what some view as judicial overreach. Originalism advocates argue that it restricts judicial activism and maintains the Constitution's role as a stable foundation for governance.

Bork's judicial philosophy has also played a crucial role in shaping the Federalist Society's influence on American jurisprudence. The society has become a powerful force in promoting originalist and conservative legal principles, with many of its members occupying high-ranking judicial positions.

As the judiciary continues to address contemporary legal issues, Bork's influence will undoubtedly remain a central touchstone in the ongoing discourse surrounding constitutional interpretation.

Robert Bork's dedication to originalism has left an enduring mark on American jurisprudence. His influence continues to shape constitutional interpretation, emphasizing the importance of adhering to the framers' original intent in preserving the principles of our constitutional republic.