Damon Root: When Judicial Activists Switched Sides


On July 1, 1987, President Ronald Reagan introduced the American people to the man he had selected to replace retiring Justice Lewis Powell on the U.S. Supreme Court. Robert Bork "is recognized as a premier constitutional authority," Reagan announced, with the nominee standing by his side. A former solicitor general of the United States, a distinguished former professor of law at Yale University, and a sitting judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, Bork did indeed come well qualified for the position. Furthermore, Reagan continued, Bork is "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint," the idea that judges should defer to the will of the majority and refrain from striking down most democratically enacted laws. As a justice, Reagan concluded, Robert Bork "will bring credit to the Court and his colleagues, as well as to his country and the Constitution."

Less than an hour later, Sen. Edward Kennedy of Massachusetts, a prominent liberal Democrat, took to the floor of the Senate to offer a very different take on Reagan's pick. "Robert Bork's America," Kennedy declared, "is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters…and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy."