There are few personalities in the legal profession that are divisive as Robert Bork. And, while his name has not often come up this election cycle, his legacy with the Supreme Court and possibility that his vision will shape its future deserves to be discussed.
Bork, who currently serves as the chairman of Mitt Romney’s Justice Advisory Committee, built a career on divisive partisan politics, beginning in 1973 when, as solicitor general, he fired Archibald Cox as special prosecutor to facilitate Richard Nixon’s attempted coverup of the Watergate scandal. In 1987, then-president Ronald Reagan nominated Bork to the Supreme Court. Bork’s nomination went down in flames as the Senate rejected him by a vote of 58 to 42, the largest margin in American history.
Bork’s candidacy was largely rejected because of his strong opposition to civil rights and women’s reproductive freedoms. Bork flat-out rejects the idea of a constitutional right to privacy, believes both Griswold v. Connecticut and Roe v. Wade were wrongly decided and thinks there is no such thing as gender discrimination under the law. While those views are what tanked his nomination, they’ve managed to find a place in the jurisprudence of the high court still, proving the tenacity of the Bork legacy.
Bork’s failed Supreme Court nomination paved the way for Anthony Kennedy’s confirmation. At the time Kennedy was considered a moderate to Bork’s extreme-right positions, but civil rights advocates have come to understand that was not the case. Perhaps no single Supreme Court justice has had the effect of effectively undoing the protections granted women through the Griswold and Roe decisions as Kennedy. In many ways, it didn’t matter that Bork’s nomination failed to be confirmed by the Senate because the very act of airing his extremist views managed to move the pendulum far enough to the right to pave the way for Anthony Kennedy’s ascendance to the high court and later Clarence Thomas.
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In fact, without Bork’s nomination justices like Thomas and Samuel Alito would hardly be possible. After all it was as an appellate court judge that Alito embraced the idea of spousal consent as failing to create an undue burden on a woman’s right to chose in a decision the Supreme Court would later largely affirm in Planned Parenthood v. Casey.
To that end, Bork’s legacy on the Court is very much alive today, and should Romney succeed in his quest for the presidency, that legacy will be cemented in future Supreme Court nominations. As it stands the Court is at best a mere one vote away from a majority that would overturn Roe together, if it is not there already. If Robert Bork has his way, the gains made by women and racial and political minorities will be undone within this decade.