Constitutional Law

Robert Bork, 1927-2012

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Robert Bork, a former federal appeals court judge and one of the central figures in the modern conservative legal movement, died this morning at age 85. A Yale University law professor who also served as solicitor general and acting attorney general under President Richard Nixon, Bork was best known for his controversial 1987 nomination to the U.S. Supreme Court by President Ronald Reagan, which ended in defeat.

Bork's contributions to American law and politics were extensive. His 1971 Indiana Law Journal article "Neutral Principles and Some First Amendment Problems," which questioned the constitutional underpinnings of the Supreme Court's privacy jurisprudence in Griswold v. Connecticut (1965), remains one of the most frequently cited articles published by a legal scholar and also a touchstone for conservative legal thinking.

His popular writings had an equally far reach. In his 1990 bestseller The Tempting of America: The Political Seduction of the Law, Bork advanced a dual case for judicial restraint and constitutional originalism, an approach that proved highly influential on conservative lawyers, politicians, and activists. Although Bork's emphasis on judicial deference to majority rule has become less influential on the right in recent years, due in large part to the powerful criticisms of his work made by legal scholars such as Roger Pilon of the Cato Institute and Randy Barnett of the Georgetown Law Center, Bork's approach still has its adherents. His influence was demonstrated most recently in Chief Justice John Roberts' opinion upholding the Patient Protection and Affordable Care Act, which Roberts framed as a Borkian exercise in judicial deference.

As I remarked in October on the 25th anniversay of Bork's failed Supreme Court confirmation, "whether you're a fan or foe of Robert Bork, there's no question he has had a tremendous influence on American politics."

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  1. And the Swedish Chef has a sad.

    1. Well, he’s certainly borked now.

  2. which questioned the constitutional underpinnings of the Supreme Court’s privacy jurisprudence in Griswold v. Connecticut (1965)

    Conservatives will never get over their butthurt on the Right to Privacy.

    1. You really have a fixation on asses don’t you?

    2. Because it’s not a real thing.

      1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        If a warrant is required to “unsecure” your person and property for inspection, a right of privacy is implied.

        Griswold was wrongly decided, but the argument that there is no right to privacy is just silly.

        1. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          Griswold was wrongly decided, but the argument that there is no right to privacy is just silly.

          1. Describe to me what a right to privacy looks like.

            1. A simple example would be the government not being allowed to require companies or individuals to disclose employment terms without due process.

              Contracts are private unless subpoenaed.

              How much an employer pays an employee is none of the states’ damn business.

              1. That would be “secure in your papers”, which has nothing to do with privacy. The right not to speak is not a right to privacy.

                Here’s a link I never expected to use.

                1. Some of that is bullshit, as Ive covered in previous IP discussions.

                  1. If I broke into Jennifer Aniston’s bathroom and saw her naked, I think I would have every right in the world to describe what she looked like naked.

                    But if she has the ‘right to privacy’, then I don’t. Which is crap.

                    1. Which is crap.

                      Not at all. If you see her on a nude beach, then describe away. But not only did you commit B&E, but she could rightfully get an injunction against the publication of your description and civil penalties if you release it verbally.

                    2. B&E yes, but that’s a product of my mind, regardless.

                    3. Have you been eating paint chips, Randian? There is so much wrong with this line of reasoning, it’s hard to even begin arguing with it. This is Tonyesque.

                      The right to privacy is a protection against government intrusion. Criminal laws provide for protection against other individuals.

            2. I’m not going to show you, it’s private.

        2. If a warrant is required to “unsecure” your person and property for inspection, a right of privacy is implied.

          I don’t think so. Now, I think as a matter of public policy it is a very good idea to severely limit the types and kinds of observational devices (e.g. infrared scopes, high-powered binoculars, etc.) but I find it rather chaotic (as a concept) to say that someone who uses powerful binoculars is violating my privacy.

          1. I find it rather chaotic (as a concept) to say that someone who uses powerful binoculars is violating my privacy.

            I also think that’s too far. You are, after all, letting photons out of your house to roam freely–if in perfectly straight lines–onto someone else property.

            But if you shut your curtains and shades? Anything to evade that to still inspect you or your property is a violation of a natural right to privacy.

            1. The status of shades is what dictates the right now?

              Like I said, that doesn’t make sense to me.

              1. Why not.

                Open shades in front of clear window implies that you have no expectation of privacy. Closed shades implies you do.

                Changing clothes in the middle of a store implies no expectation of privacy. Going into a walled dressing room implies it.

                1. Going into a walled dressing room implies it.

                  It implies you want something to be private. It doesn’t imply that you have a right for it to be so.

                  1. Privacy is a fundamental part of self ownership.

                    Like I said the expectation of privacy can by hazy in border cases, but I think the concept is clear cut enough.

                    And I dont think a dressing room is a border case. If it is to you, something is seriously wrong with your brain.

              2. It’s the difference in ownership between locking something in a home safe and leaving it out in the woods.

                1. You still own the thing you left in the middle of the woods, though. You just didn’t protect your ownership very well.

                  Same principle here.

                  1. Same principle here.

                    No, you are implying that there is no difference between an abandoned item and one that is intentionally secured. One may be taken in good faith, the other is clearly a crime to seize without a warrant.

                    1. A few months ago, I used the self-scanner at the grocery. When I was done, I noticed a $5 bill in the change thing. I had paid with a card so it wasnt mine.

                      No one had preceded me directly at the machine (it was vacant when I walked up). I looked around, I walked to the door to see if their was anyone walking back to the store to retrieve their money they forget. There wasnt. At that point I pocketed the money. It was abandoned, I made a reasonable effort to find the rightful owner. I didnt steal it, it was mine at that point. That is no way similar to finding it inside a safe in their house.

            2. I don’t think it’s too far, to require a warrant for the police to use technology of various sorts, in order to do a close search of what is protected by the 4th Amendment. I don’t think it’s chaotic policy, either. “Plain sight” is as good a line to draw, as any, and probably the least chaotic.

              Search warrants merely require that there be a justifiable reason for the search, and they require the police to declare their intentions to a judge. This is not an excessive burden.

              1. Barry, I’m on board with most of that. I just don’t think ‘privacy’ is what that’s called.

                1. Then what is privacy? Or is it just a null concept?

                  1. There is such a thing as privacy, I just don’t think there is a right to it.

                    1. So if robc and I force our way into a dressing room and snap pics of your frightened junk, you don’t think you have any basis to object?

                    2. Thats the way we roll in KY.

                    3. Every single Kentuckian does it!

                      /Groundkeeper Willie

                    4. Great question. I’ll let you know.

                2. “I just don’t think ‘privacy’ is what that’s called.”

                  Right. Just like “substantive due process” is ridiculous. But it works about as well as “privileges and immunities”, at least to the extent that I wouldn’t try to make the discrepancy into the sort of issue that Bork would have.

                  1. (I’m with the Thomas way of looking at it: write a separate opinion if need be, but don’t let it stop you from concurring with the individual rights side. Bork always struck me as someone who would have let minor discrepancies take precedence over the decision itself.)

          2. Expectation of privacy is a fairly hazy concept, but it still exists, even though the exact boundaries are blurred.

            If you remember the “upskirt” controversy from a few years ago, it turns out in my locations there was nothing illegal about using a hidden camera to film upskirt a women in public. Some states changed their laws to clarify/define that expectation of privacy.

            However, in all the locations, it was already clear that, say, filming under a dressing room door violated that expectation of privacy.

            I dont think binoculars violate privacy, but an infrared detector does. Its a tricky line, but I can Potter Stewart it.

            1. My == many, although I think “my” also applies.

              1. = sets, == tests

    3. Like this paragon of Democrat virtues, shrike?

      http://news.cnet.com/8301-1357…..ance-bill/

      “Sen. Patrick Leahy has abandoned his controversial proposal that would grant government agencies more surveillance power — including warrantless access to Americans’ e-mail accounts — than they possess under current law.”

      This is usually the kind of shit we’d see from Republicans (remember: If you’re not guilty, you have nothing to fear).

      Fuck you, shrike.

  3. Granted this is an unprovable assertion, but I have absolutely no doubt Bork would have upheld ObamneyCare. His opinion would read much like the logic Hazel Meade has been floating around about insurance as a requirement for gun ownership.

    Yanno, this makes me think of something:

    What if he had been confirmed? His Pestilency would be nominating Bork’s replacement now. Makes me wonder how long the other “conservative” Justices will hang on.

    Ruthie B will hang on until she is a pile of matchsticks.

    1. Coming soon: Weekend at Ruthie’s.

    2. I don’t understand how upholding Obamacare was showing judicial restraint to majority rule, when it was because of the Obamacare legislation that Democrats suffered such an astounding defeat in 2010.

      They pass a law that a majority of Americans didn’t want, and Americans punish them for it, yet it’s Americans who “asked for Obamacare”?

      Fuck you, John Roberts.

      1. Uh, they didn’t exactly throw out the eponymous author, now did they?

        1. He didn’t write that.

        2. Very true, but it’s hard to throw out the guy who signed the legislation when it would lead to the guy who first signed the legislation being elected.

          Worst. “Jack Johnson vs. John Jackson” election. Ever.

          1. Still, though, given the campaign, it would have reflected a rejection of Obamacare.

            Face it, this is what the country wants.

  4. Bork is memorable in my mind for his constant revisionism with regard to his position on the 1964 Civil Rights Act, which he originally insisted was both immoral and unconstitutional. He later claimed that he only opposed it because he thought it was unworkable, and insisted that he was pleasantly surprised that it did work.

    Libertarians may remember Bork for being on the “wrong” side of the Clinton Administration’s anti-trust suit against Microsoft, and for his ridiculous statements regarding the dangers of pornography. I saw him at an AEI conference where he suggested, in an off the cuff remark, that perhaps “we” should have banned Chuck Berrry back in the Sixties, because Chuck led to the Beatles, who led to the Rolling Stones, who then led to the end of Western Civilization. I felt sorry for Bork, not because he was rejected for the Supreme Court, but because of the demagogery used to “destroy” him. But I’m damned glad he wasn’t approved.

    1. If he’d hae had tighter control on nuclear material, Marty wouldn’t have been able to go to the Undersea Dance and teach Chuck that song.

      1. I totally hate that movie only because of that one scene.

    2. They would have had to ban Chuck in the 1950s. They did put him in prison in the 1960s.

    3. Character assasination, it’s whats for dinner.

    4. People who spout stuff like Bork did, and have aspirations to positions like SCOTUS Justice, have no room to complain about demagoguery.

    5. So you don’t think forcing business owners to associate with people against there will is immoral?

      1. It is.

        Violating the NAP is ALWAYS worse than discriminating against another on account of her sexual orientation, race et al.

        1. What if you discriminate aggressively?

  5. So, if he had been confirmed for SCOTUS Obama would be making a pick now. I find that amusing.

    1. PWND

      1. If Bork had been confirmed for SCOTUS, Restoras’ comment would have been posted first.

  6. The left doesn’t know how to react because there were never any MoveOn or ThinkProgress talking points distributed about Robert Bork.

    1. The KosKiddies are currently clapping their hands with glee, hoping Bork roasts in hell, saying he was a hatchet-man for Nixon, an judicial advisor to Romney, and that Bork was the “intellectual predecessor” to conservative jurists today (without naming a single name).

      One of them managed to throw in a “fuck Reagan” comment, too.

      It’s civility all the way down.

  7. Im not sure Kennedy has been any worse than Bork would have been, and at least he is still alive.

    1. Kennedy’s definitely better.

      1. I agree with this. Kennedy may be unpredictable in his opinions and seems overly concerned with devising all sorts of legal tests, but his opinions are seated in solid jurisprudence, even though I may not agree with some of them.

      2. Which is a pretty scary statement.

        1. In some ways Ginsburg is better. At least she doesn’t worship at the altar of deference to “majority rule”, which in the Obamacare case, meant a few Reps swayed not by their judgment of the bill’s merits, but by special handouts for their states.

  8. At least he lived long enough to see Ted Kennedy die.

    1. I reluctantly dub Mike M. the “thread winna”… and may god have mercy on our souls.

  9. I wonder what his opinion on the Texas Twat search would have been.

    1. Nowhere in the Constitution does it specify personal ownership of body orifices – A-OK by me!

  10. No mention at all about Bork’s involvement in the Saturday Night Massacre?

    That alone should have been enough to disqualify him from ever holding political office again.

  11. So long you big fat statist.

  12. Best bit I know of about Bork was the “Hammeroid” episode of Sledge Hammer!.

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