The Majoritarian Vision of Robert Bork

At Ricochet, New York University law professor and pioneering libertarian legal scholar Richard Epstein comments on the passing of conservative legal giant Robert Bork, who died last week at age 85. The whole piece is worth reading, but I wanted to draw particular attention to Epstein's observations about the central role judicial deference played in Bork's approach, and how it directly conflicted with Epstein's own views about the Constitution:

[J]ust as Bork had worked out his antitrust positions, he ventured off into the realm of constitutional law, heavily influenced by yet another one of my [Yale law school] teachers, Alexander M. Bickel, whom in his own way was as much a contrarian as Bork.  Bickel's most famous contribution, The Least Dangerous Branch, stressed the importance of the passive virtues in light of the "countermajoritarian difficulty," whereby courts kept their distance from the political controversies of the time that were best left to the political process.

In Bork's confident hands, the aloof intellectualism of Alex Bickel became much more emphatic and strident. Indeed, after Bickel's all-too-early death in 1974, Bork lashed out at just about everyone on every side who thought that courts had a greater role in dealing with the Constitution than his strongly majoritarian politics allowed.

That position brought us into tension, to say the least, because at the time that Bork was pushing this line, I was working up the arguments for my 1985 Takings book, which somewhere around page 281 simply concluded (correctly, I still believe) that the entire New Deal was not just unwise, but flatly unconstitutional.

If memory serves me correctly, there was, in December of 1983, a conference on the topic of the contracts clause held at the University of San Diego in which Bork took what I thought to be the incredible position that any statute should be regarded as constitutional so long as its defendants can propose any rationale that might make it stand, even if they knew it was wrong, so long as they could say it with a straight face.

Read the whole thing here.

Comments

[R C Dean]

Bork took what I thought to be the incredible position that any statute should be regarded as constitutional so long as its defendants can propose any rationale that might make it stand, even if they knew it was wrong, so long as they could say it with a straight face.

To see this in practice, pls. refer to Robert's opinion upholding the ObamaCare penaltax.

In practice, of course, this means that if the Solicitor General files a brief defending a statute, the statute is upheld. Bork wanted to make judicial review of statutes a nullity. Good riddance, I say.

[ChrisO]

I believe it was Bork who dismissed the Ninth Amendment as akin to an "ink blot." Which, of course, completely misreads the role the Ninth is supposed to play when read together with the Tenth.

It sounds like Bork was a genius when it came to antitrust law but completely out of his depth on constitutional law issues.

[Westmiller]

Bork should have been a casualty of the "Saturday Night Massacre", not the beneficiary. Probably the worst judge of constitutional intentions I've ever heard speak.