EUGENE MEYER The conservative movement has over the last quarter of a century changed the discourse in the country and countered the arid ideologies of the collectivists and Communists and other leftists. Judge Bork has played that role in our legal system. He was a legal giant; a man of unsurpassed integrity, intellect, courage, and wit. His efforts are far from having all borne fruit yet, but for years he was practically intellectually alone in upholding our constitutional principles. Consider his scholarship and his contribution to the debate and discussion throughout his years as a Yale law professor and well beyond; his service as solicitor general of the U.S.; his service as a U.S. Court of Appeals judge; his powerful works including The Tempting of America and Slouching Towards Gomorrah and TheAntitrust Paradox; and his role as a mentor inspiring the best of the next generation in all of these positions. Taken together, these accomplishments show that no one has had more influence in supporting and sustaining the constitutional principles on which one can build a shining city on a hill.
Personally, I am additionally grateful to him for all that he did since the inception of the Federalist Society to inspire, encourage, and support us whether by speaking, through his wise advice on our Board of Visitors, his invaluable encouragement for our students first founding the society, or simply the many leaders of the society he mentored.
I should mention that he was somewhat famous for being a pessimist; indeed he might say of what I have said that even if it were all true, the outlook is still bleak. But if his occasional bleak forecasts for our future do not come to be, and I don’t think they will, he will have to look to himself for someone to blame. He will have been the leading person in his generation to warn against lawless judging and to warn against it so articulately and powerfully that people actually listened. And they not only listened, but were inspired to counter what once seemed to be an overpowering tide.
In the end he will be remembered for his support of the constitutional principles that helped build America and for his pioneering a jurisprudence of original meaning — interpreting the Constitution according its text — that has had enormous influence in the courts, in the legal academy, and with the American people.
I would also add that Judge Bork was one of the clearest thinkers it has ever been my privilege to meet. He quickly and fearlessly cut to the heart of problems. This proved not to be entirely an asset when he was nominated to the Supreme Court, as the political process sometimes values the ability to be all things to all people, something that Judge Bork never aspired to do. At the end of the day he was remarkably open-minded. If he was confronted with an argument he had missed, his instinct was not to try to hide the ball, but to get to the bottom of the problem.
Finally, today one reporter asked me if there was anything about Judge Bork that most people might not know. Perhaps it is that underneath that beard he was a truly kind and decent man, a mentor to his students and clerks, and very kind and supportive in day-to-day life.
Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum. For example, he helped demolish the view that having a large market share is by itself a strong indication that a firm has achieved monopoly power.
Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center. Today, even many prominent liberal scholars accept the general framework of “original meaning” originalism defended by Bork, even though they vehemently disagree with him about particular cases.
In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power. Bork occasionally seemed to recognize this reality, but also often argued as if there were no trade-off between originalism and deference. Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.
The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.
— Ilya Somin is a professor of law and editor of the Supreme Court Economic Review at George Mason University School of Law.
“My” judge, the judge I clerked for, Robert H. Bork, passed away this morning. Others can and will address the controversy surrounding his Supreme Court nomination, and even his monumental influence on both antitrust and constitutional law, fields he revolutionized with a short book and a shorter article. What most will miss — and what I will miss most about Judge Bork — was how affable, clever, smart, and funny he was. As I write this, there echoes in my mind one of his favorite responses to an over-the-top introduction at the beginning of a speech: “It is a good thing an introduction is not an affidavit.” (Trust me, to lawyers, and those who know that an affidavit is a sworn statement attesting to the truth, this is very funny.)
I clerked for him in 1983–84, as a 23-year-old fresh out of law school. He had been on the United States Court of Appeals for the District of Columbia Circuit — often called the second highest or most important court in the land — for just two-plus years. Perhaps ironically, when entering Judge Bork’s chambers in the E. Barrett Prettyman U.S. Courthouse in Washington, D.C. (the site of famous trials like those of John Hinckley and Oliver North), then-Judge Ruth Bader Ginsberg’s chambers were to our left, and then-Judge Antonin Scalia’s to our right — although the judges saw each other very little. At the time, he was often mentioned as the “next” Republican Supreme Court nominee, a prospect about which he, predictably, manifested both equanimity and a sense of humor. Although he certainly would have welcomed, and ultimately did welcome, a nomination, he did not feel as if he needed it to have a fulfilling life. (Maybe that is why he was — to his eventual detriment — so direct and honest when questioned by the Senate Judiciary Committee, a mistake no subsequent Supreme Court nominee has made.)