Commentary Law and Policy

Robert Bork, Conservative Legal Scholar, Dies at 85

Jessica Mason Pieklo

There may be no larger figure in the modern conservative legal movement that Judge Robert Bork.

Few personalities loom larger in the law than Robert H. Bork, and his death at age 85 will not change that at all.

The failed Supreme Court nominee first made a name for himself during the Nixon administration when, as solicitor general, he fired special prosecutor Archibald Cox in an attempt to help cover-up the administration’s Watergate scandal. From that moment forward Bork began to cement the pathos of the “victimized” white male conservative that now fuels the modern Tea Party movement.

Bork’s ruthless political work was matched only by his downright odious view of women and minorities and his resistance to civil rights advancements, and it is that legacy that survives most visibly in the modern conservative movement. Bork famously criticized the Civil Rights Act of 1964, which among other things banned discrimination in public accommodations like hotels and restaurants. He called the idea that the government could ban certain conduct in the name of equal protection a “principle of unsurpassed ugliness.”

It’s fair to say Bork didn’t believe at all in the spirit or the substance of the equal protection clause of the 14th Amendment and the idea that the federal government can force states to treat all citizens the same, regardless of race and gender, let alone sexuality. Instead, Bork clung to the 10th Amendment, arguing states can freely discriminate, using that argument as a shield from what he saw as encroaching federal liberalism, laying the legal foundation for today’s “libertarian” Federalist Society.

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Not surprisingly, Bork was a vocal critic of privacy rights, calling the holding in Griswold v. Connecticut which prevents states from criminalizing contraception because married couples have a constitutional privacy right to decide how to control procreation as “utterly specious” and a “time bomb” in the moral decay of our country. Bork called gender discrimination “silly”, a view which helped land him a spot as co-chair of Republican Presidential Nominee Mitt Romney’s “Justice Advisory Committee.”

Bork’s hard-right political and legal views led the Senate to reject his nomination to the Supreme Court by then-president Ronald Reagan by 58 to 42, the largest margin of defeat in American history. Bork’s replacement, Anthony Kennedy, was supposed to be a moderate compared to Bork. That has not really been the case.

Conservatives learned a valuable lesson in the Bork nomination: future nominees, keep your mouth shut. Sitting Supreme Court Justices Clarence Thomas, Samuel Alito, and John Roberts share many beliefs with Bork but since learned to speak differently about them. All pledge to uphold precedent when asked about their views on Roe v. Wade, for example. Yet as an appellate judge Justice Alito endorsed Pennsylvania’s spousal consent law and has voted to gut abortion rights at every opportunity, based in part on the belief that Griswold v. Connecticut was wrongly decided.

Just how long Bork’s legacy lasts depends in large part on the coming shift in the Supreme Court and whether the modern-day Republican party can wrest control from its fringe. By the looks of things today, that’s going to be a while.

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