Robert Bork: Of Great Successes and Great Failures

The death of Robert Bork will surely evoke strong memories, both positive and negative, from those who knew him. The public portions of his life will be well rehearsed by others, so I shall just make a few more personal remarks about a man who surely had a great influence over my own life.

My first acquaintance with Bork dated from the days when I was a student at Yale Law, in the years between 1966 and 1968. I never took Bork’s well-known and controversial class in antitrust law, but to be in the building at that time was to learn of his views by indirection, so powerful was his personality and influence on the law. In my case, the influence was still stronger because I did take an advanced antitrust seminar (open to those who did not take the basic course) on “contract and vertical integration,” one of whose instructors was Ward Bowman, a highly original antitrust mind, who was at that time a close confidant of Bork, and who shared Bork’s views that the antitrust laws were all too often used to stifle the very competition that they were supposed to promote.

In retrospect, it is hard to convey the extent to which Bork was out of step with his time in the expression of his views. The dominant liberal culture at the Yale Law School tolerated his rather outlandish teachings, but it never accepted the power of his insights on the role that economic analysis played in understanding a wide range of antitrust doctrines.

The 1960s were a time when just about every merger was considered in restraint of trade. It was also a period in which all vertical restraints — such as tie-ins and retail price maintenance — were regarded as devices for illicit market extensions. No one had really worked out the efficiency gains that could come from those practices. 

It is a sign therefore of Bork’s real influence that he was prepared to take on one and all on that topic, and by virtue of his unflinching commitment to principle eventually carried the day. It is important to remember that he started as a lone wolf who fought in opposition to the established culture. Yet, by the time his 1978 book The Antitrust Paradox was published, his victory was so complete that the work read like an establishment document, not like the product of the feisty revolutionary that he had been from the time that he arrived at the Yale Law School in 1962.

Yet, just 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 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. It remains one of the mystery of the Bickel/Bork position how clauses with broad language can be read so narrowly. Yet it is fair to say that Bork was so infused with his priors on the role of political institutions that he never asked the hard question of whether any standard principles of constitutional interpretation could lead to that result. 

What was so ironic about all this academic writing is that it did not reflect itself in Bork’s best judicial opinions. In Jersey Central Power & Light v. Federal Energy Regulatory Commission, he wrote a powerful opinion that held that the rates allowed by FERC were too low by constitutional standards. One wag invoked Lord Byron’s Don Juan, to observe about his use of substantive due process, “saying he’d ne’er consent, consent’d.” And in Ollman v. Evans, he wrote a stirring defense of freedom of the press that also fits ill with his majoritarian philosophy. At one social event, I asked him about the tension between the two and he just shrugged off the question, without an answer, and walked away. He was a hard man to get to reflect on his own views of the world.

Indeed, looking back over the years, that was always his Achilles’ heel. He could never moderate his words. In 1963, writing in the New Republic, he denounced Title II of the Civil Rights Law for its massive interference with ordinary liberty, a position that he came to regret. 

He could also always be counted on to turn the wrong phrase on the wrong occasion. One of the first times I saw him speak was at an Alumni Dinner at the University of Chicago, probably in the spring of 1973. He was quite upset about student unrest on campus, and not without cause. But the audience quite literally gasped when in the midst of his speech he called for “the severed head of a student activist to be presented on a silver platter.” It was, I suppose, his way of making clear his opposition, but it did not help to win him friends on the occasion.

Nor in other ways was history kind to him. Shortly after his speech, Bork had to deal with the Saturday Night Massacre, for which he always received a raw deal. He was asked, so I have been told, to stay on after both Elliot Richardson and William Ruckleshaus both resigned to great acclaim, leaving Bork, as third in the Department, as the Acting Attorney General, with the dubious honor of having to fire special prosecutor Archibald Cox. Clearly, someone had to run the show, and it would have been both proper and politic for Richardson and Ruckelshaus to come to his public defense, which neither ever did. 

That event, along with so many others, shaped his fatal hearing for the Supreme Court nomination, which started out with the most effective and deplorable denunciation from Senator Edward Kennedy. Those harsh words should not be repeated, lest they give more credit than is due to one of the worst smears in our political history. If you want confirmation, read Jeffrey Rosen’s own honest and perceptive reflections on Bork’s death: “I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack.” Then followed terrible words.

And it only got worse. Bork followed tradition and, as a nominee, said nothing in reply, which only made matters worse. The situation only got worse when his critics denounced his reflections on the right to privacy and his narrow views on freedom of speech, none of which spoke to his fitness for office, but all of which showed a deep animus against a man that many feared precisely because of his fierce intellect. There were all sorts of quotes taken out of context by various groups, among them Norman Lear’s People for the American Way, that made Bork sound like an ogre. But again, he could do little to counter the torrent of unwarranted abuse that came his way.

Things did not get better at the hearings. As a witness, he had no real sense of the theatrical performance around him, and refused to take advice to shave his beard, to act humble before the Senate, and to understand the grave social obligations with which he was entrusted. Bork did no such thing, and a defense of his work became next to impossible. I recall writing an op-ed in his defense, holding that a former libertarian on the Court was better than someone who never had any  libertarian inclinations at all. 

None of that went over very well with Bork, or, indeed, anyone else. I was speaking about rent control at a University of Chicago event in Los Angeles at the height of the fury, taking the position that rent control statutes were per se unconstitutional. An angry older man from the audience called out, “You sound just like Robert Bork,” clearly not knowing Bork’s views on judicial restraint. The man then demanded that I denounce Bork on the spot in order to rehabilitate myself in his eyes. 

The opposition was exactly that brutal, as everyone knows. And one of those who knew best was Bork himself, who, in my view, never recovered his personal balance after that shattering defeat.  He was obviously upset at his enemies, but even his sometime friends ran into difficulties because they had not done enough to put him over the top. It is not clear that anyone with Bork’s general views could have secured that confirmation, particularly with his personal legacy of speaking out of turn on earlier occasions. But Bork did not help his cause with his performance in the Senate.

In my minority view, if he had gotten the seat, his sense of institutional gravitas would have allowed him to dial down the anger, at which point he could have been an effective and distinguished Supreme Court justice. But his truculent behavior afterwards towards so many people (from which I was not exempt) made it very hard to persuade those who attacked him that they were in error. 

Clearly, it was not meant to be, and so his legacy has become a verb: to Bork. The confirmation process has never been the same since that time, and much has been lost by the want of trust and respect across the aisle. But at the time of his death, his enemies should bury the hatchet and remember Bork for his formidable intellectual powers and deep commitment to what he perceived to be sound constitutional principles. Let us hope that this much reconciliation is still possible.

  1. Trace

    If he had been confirmed, President Obama would be appointing a liberal justice to catastrophic effect at the moment.

  2. Egg_Shen
    Trace: If he had been confirmed, President Obama would be appointing a liberal justice to catastrophic effect at the moment. · 1 hour ago

    Yes, but the 25 year tyranny of Anthony Kennedy would have been completely avoided.

  3. De_Maistre

    And conservatives may have already achieved many of the substantial victories they desired:

    http://balkin.blogspot.com/2012/12/robert-bork-and-contingencies-of-history.html

    Egg_Shen

    Trace: If he had been confirmed, President Obama would be appointing a liberal justice to catastrophic effect at the moment. · 1 hour ago

    Yes, but the 25 year tyranny of Anthony Kennedy would have been completely avoided. · 11 minutes ago

  4. A Murder of Cows

    Bork was on the older side as Supreme Court nominees in the last few decades go.  He was 60, and every nominee since has been in their 40′s or early or mid 50′s, except Ruth Bader Ginsburg, who was 60, and Harriet Miers, who was 59 (though women, on average, live longer than men do).

    While in a perfect world I might prefer to see older, more experienced judges appointed to the court, I can’t blame either party for seeing the value in nominating younger judges whose impact will be magnified by a long tenure, minimizing the number of appointments a successor of another party might get.  Clarence Thomas was appointed four years after Bork, but today he’s only 64.

    So as speculation heats up about whom President Obama might nominate to the Supreme Court, you can probably scratch from this list anyone born before 1953 or so.

    Trace: If he had been confirmed, President Obama would be appointing a liberal justice to catastrophic effect at the moment. · 10 hours ago

  5. Skyler

    An even better eulogy than John Yoo’s.  Thank you.  It confirms my own impression of the man.

  6. A Murder of Cows

    While I’ve expressed less-than-positive thoughts about Bork elsewhere on Ricochet, and while my personal hunch is that I’m just as glad the seat ultimately went to Anthony Kennedy, whom I admire a bit more than most conservatives do, I must say Bork’s book The Antitrust Paradox certainly influenced how I think about antitrust issues, and it deservedly remains the starting point for any serious discussion of the merits of antitrust law.

  7. Keith Preston

    Yes, unfortunately the mainstream narrative for Bork’s legal career will not be written by people like Richard, but by professional smear merchants like Jeffrey Toobin.

    How sad.