Supreme Court

What If Robert Bork Had Joined the Supreme Court?

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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?

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  1. What If Robert Bork Had Joined the Supreme Court?

    Neckbeards would once again rule the earth.

  2. HARRY TURTLEDOVE IN THE HOUSE

    1. So you’re saying it would be exactly the same as what actually happened, only with different names?

  3. Obama would be gleefully making a replacement pick?

    1. Hell, after being Borked for 30 years, I might welcome another Wise Latina?

      1. Was no one interested in Borking a Wise Latina?

          1. The Wise Latina or A Wise Latina?

  4. Sounds like a pretty crazy ploy to me dude.
    http://www.GlobalAnon.tk

    1. Anon bot, like every chat bot eventually shows us that alas, it’s not that super-intelligent, it eventually resorts to asking us questions about our mother.

      Sorry, Kurzweil, you’re gonna have to wait for the singularity a little longer.

  5. 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.

    It would have sounded Plausible-er to me in in 1986. But in 2012, it doesn’t seem as plausible at all. Given what we know about our most conservative justices, and how the court has crept in a decidedly progressive/living document direction ever since, I’m just not feeling strongly about an overturn of Roe.

  6. That is, once originalism and deference began to point in different directions, which would have predominated in Justice Bork’s jurisprudence?

    Deference, no doubt.

    Bork, I believe, famously called one of the articles of the Bill of Rights an inkblot. If he was an originalist, it was skindeep.

    1. What is the 9th Amendment, Alex?

    2. Yes, you are correct Mr. R. Clayton. He did make the inkblot comment.

      I think the problem here is that progressives are so not originalists, that conservative jurists are automatically cordoned off in the ‘originalist’ camp by virtue of their conservatism.

      It helps them corral libertarians and conservatives into one, easily referenced camp.

  7. I can’t claim to be an expert on Bork’s judicial philosophy, but from my cursory read, he seems to be along the line of a Oliver Wendell Holmes, where the “will of the people” should be the ends. From his “Tempting of America” we get this nugget: “that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”

    1. I believe his book Slouching Towards Gommorah is a screed about how the “will of the people” is driving us into decay.

      1. I believe his book Slouching Towards Gommorah is a screed about how the “will of the people” is driving us into decay.

        From memory, I believe it was a mix of elite academicians, judicial activists and a immoral culture that was the problem. Thus Bork’s logical conundrum: if the “will of the people” is supreme, then don’t bitch when they enact legislation you disapprove of. Also, Slouching Towards Gommorah contains a section where Bork attacks libertarians for their whole “individual rights” stuff, cause it prevents the majority from making laws and all.

  8. “One evening at a hotel in New York I flipped around the television channels. Suddenly there on the public access channel was a voluptuous young woman, naked, her body oiled, writhing on the floor while fondling herself intimately?. I watched for some time?riveted by the sociological significance of it all.” – Bork

    “Radical individualism is the handmaiden of collective tyranny.” – Bork

    http://www.waggish.org/2012/ro…..-memoriam/

    h/t Mr Steven Crane

    1. “Radical individualism is the handmaiden of collective tyranny.”
      I agree. By “individualism,” Bork did not mean “libertarianism.” He meant cultural “freedom,” usually freedom from responsibility. Many cosmatarians think that individual responsibility stops at the bedroom. But it doesn’t. There is a reason that most single mothers vote Democrat. They literally cannot afford to take care of their children themselves. They need welfare or subsidized daycare. Why do cosmatarians put more value on the adults right to fuck each other rather than the child’s right to live in a traditional family. (By “right” what is meant is the ability to do the thing without being judged for it) Sexual individualism, at least, is incompatible with libertarianism.

      1. Talk about projection. Fuck you and your cultural collectivism, statist, tyrannical mind.

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