In 1986 President Ronald Reagan nominated Antonin Scalia to the U.S. Supreme Court. He was promptly confirmed by the Senate. A year later, Robert Bork went through the same process and instead found his confirmation derailed and defeated. Writing at Balkinization, Yale law professor Jack Balkin poses a very interesting “what if” premised on the idea of Reagan switching the order of these two judicial nominees. Balkin writes:
Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger's retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.
Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate. You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork's remarkable paper trail of opposition to civil rights and civil liberties. Scalia had not, for example, opposed the 1964 Civil Rights Act on grounds of individual liberty (Bork later recanted his opposition), and Scalia had not argued in a famous law review article that non-political speech was unprotected by the First Amendment.
Balkin argues that a Supreme Court stacked with both Bork and Scalia would have definitely overturned Roe v. Wade and perhaps also “cut a broad swath through existing liberal doctrines,” while “the cause of gay rights would have made almost no progress.” That all sounds plausible to me.
At The Originalism Blog, University of San Diego law professor Michael Ramsey picks up the “what if” thread, kindly including my own observation that Bork’s long advocacy on behalf of judicial deference has fallen somewhat out of favor on the right these days, though it did appear recently in Chief Justice John Roberts’ deferential opinion upholding the Patient Protection and Affordable Care Act. This leads Ramsey to raise this fascinating point:
An interesting question in the spirit of Jack Balkin's post is whether Justice Bork would have gone along with Scalia and Thomas' more aggressive use of originalism in cases like NFIB v. Sebelius, Heller, McDonald and Citizens United, or whether he would have pursued something closer to the position advocated by J. Harvie Wilkinson. That is, once originalism and deference began to point in different directions, which would have predominated in Justice Bork's jurisprudence?