From Bork, To Kennedy, To Obergefell

He definitely wouldn't appreciate it, but in some sense you can thank Robert Bork for the Supreme Court's opinion in Obergefell v. Hodges.

Robert Bork Hearings
In all of the coverage of last week’s Supreme Court decision in Obergefell v. Hodges, there was one person whose name I didn’t see mentioned in any of the coverage that I read. That person’s name is Robert H. Bork. As you likely recall, Bork was a Judge on the Circuit Court of Appeals for the District of Columbia who Ronald Reagan appointed to replace retiring Associate Justice Lewis Powell on the Supreme Court in 1987. Prior to being appoint to the Court of Appeals in 1982, Bork was a Yale Law Professor who had been named Solicitor General by President Nixon in March 1973. In October of that year, he became Acting Attorney General when Nixon’s Attorney General Elliot Richardson and Richardson’s chief deputy both resigned rather than carry out Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. Bork ended up carrying out the order, for which he was criticized until he died in 2012 even though at the time his rationale for doing so was the rather reasonable idea of maintaining some degree of continuity at the Justice Department. Despite that history, Bork was rather easily confirmed to sa slot on the Court of Appeals early in Reagan’s time in office.

From the moment Reagan appointed Bork to the Supreme Court, though, it was clear that the nomination was going to be among the most difficult and controversial in American history. Unlike two previous nominations under President Nixon that had failed because the nominees were obviously unqualified, and President Johnson’s attempt to make his poker buddy Abe Fortas Chief Justice of the United States, there was no question that Bork was professionally and intellectually qualified for the position of Associate Justice. Among other things, he had become known in his years after the Nixon Administration for his work in the field of Antitrust Law, and was also one of the scholars who influence the work of Richard Posner and other legal scholars. If the only question involved in selecting a Supreme Court Justice was “Is this guy smart enough and qualified enough?” there is no question Robert Bork would have qualified.

But it was Bork’s voluminous record of writings that ended up being his undoing, because within those writings were occasions when he’d expressed his opinions on a wide variety of legal and political issues that were still very much hot button issues in the mid-1980s ranging from issues involving racial discrimination to women’s rights to abortion, and pretty much any other controversial issue that would possibly come within the purview of the Supreme Court at the time. Because of that, and because it had been apparent ever since the appointments in 1986 that led to William Rehnquist’s elevation to Chief Justice and the appointment of Antonin Scalia that Bork was at the top of the Reagan Administration’s SCOTUS “short list,” it was mere hours after Bork’s appointment that Senator Ted Kenned took to the floor of the speech that came to be known as “Robert Bork’s America”:

In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon’s dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.

That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.

Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.

Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, 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.

America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.

The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.

That speech, which was highlighted in a column by the great New York Times columnist James Reston, who interestingly and ultimately incorrectly said at the time that Kennedy  ”cannot beat Judge Bork on the ideological issue alone,” became the guidepost for the confirmation hearings that followed. Those hearings, of course, were heard by the Senate Judiciary Committee, headed at the time by then Senator Joe Biden, who together with Kennedy, became the leader of the opposition to Bork’s nomination, and at the start of those hearings Kenedy repeated many of the arguments against Bork he’d made months before:

Sen. Ted Kennedy's "Robert Bork's America" Speech from BillMoyers.com on Vimeo.

It was arguably the first example of a form of judicial confirmation hearing that has become quite common today, and which has led nominees appointed by Presidents of both parties to give vague, rehearsed answers that don’t really tell us anything. Anyway. there are several places where you can read the history of these hearings, and they are also available in C-Span’s online library. Suffice it to say, that by the time they were over, Bork’s nomination was on tenuous thread and many observers wondered at the time of the Reagan Administration would allow it to go to a full Senate vote, or withdraw it altogether. When they let the vote go forward, Bork was unsurprisingly defeated. Initially, President Reagan selected one of Bork’s colleagues on the Court of Appeals, Douglas Ginsburg, as his new nominee, but when news came out that Ginsburg had smoked marijuana with students at Yale Law School while he was a Professor, that nomination was withdrawn. In Ginsburg’s place, Reagan selected Anthony Kennedy, who had been serving on the 9th Circuit Court Of Appeals since the Ford Administration, and had a fairly innocuous record. Kennedy was confirmed easily and the rest, as they say, is history.

When the time comes to put a coda on the career of Associate Justice Kennedy, there will much to say about his role as a swing vote on many issue, but it is in the area of gay rights that he has perhaps left biggest mark. He wrote the majority opinion in Roemer v. Evansa 6-3 decision from 1996 in which the Court struck down a Colorado law that purported to bar local jurisdictions from extending civil rights protections to gays and lesbians. He also spoke for the majority in Lawrence v. Texas in 2003, which overturned a 1986 ruling and held that laws making consensual sexual relations a crime were unconstitutional. More recently, he was the fifth vote and the author of the majority opinion in United States v. Windsor, the case that struck down the most restrictive part of the Defense of Marriage Act and lit the spark of litigation that brought us to yesterday’s decision.

Crafting alternate histories is hard, and ultimately entirely speculative. However, it seems immensely clear that had Robert Bork been confirmed to the Supreme Court back in 1987 that is extremely unlikely that we would be where we are today. Indeed, there are a number of areas of the law where Justice Kennedy has been a decisive influence that probably would have been very different if he wasn’t there. Given his subsequent history at the D.C. Circuit until he retired four years ago, it’s possible that Judge Ginsburg would have been a very similar Justice to Kennedy, and perhaps even more libertarian in some areas, but we’ll never know that. Indeed, Robert Bork himself died in 2012 and, arguably, would not have even been on the Supreme Court to rule in either Windsor or Obergefell. However, we don’t even know if those cases would have reached the Court in a world where Robert Bork was an Associate Justice. Indeed, there is an entire alternative universe in both the political and legal worlds that one could posit with Bork on the nation’s highest court and much of it would just be guess work. What I think we can confidently say, though, is that while America would have most likely reached the point of nationwide recognition of same-sex marriage eventually, it would have taken a different, and likely more difficult path, if Robert Bork had been confirmed to the Supreme Court 28 years ago.

On a personal side note, I had personal interaction with Judge Bork in the early 1990s when he became a Professor at George Mason University’s Law School. He was my professor for the first semester of Constitutional Law, during which we covered issues such as the Commerce Clause, Separation of Powers, War Powers, and other issues mostly dealing with Articles I -III of the Constitution. It wasn’t, I suppose, the part of Constitutional Law that most people consider rather boring and uninteresting but it was still pretty interesting to me. What made that particular semester more interesting was the fact that it occurred during the Autumn of 1991 when Clarence Thomas’s Confirmation Hearings were taking place. The fact that Thomas’s hearings initially proved to be as politically combative as Bork’s were weren’t entirely surprising, of course, given the fact that he was named to replace one of the most liberal Justices on the Court, but when the whole Anita Hill mess came into the picture, the hearings were something that I and my fellow law students were kind of obsessed with. The fact that Judge Bork was on campus just added to the conversation so, of course, we had to ask him about that. Bork’s comments on the hearings were interesting, insightful, and actually pretty amusing. In some ways, those hearings kind of helped break the ice since it had seemed when the semester started that the Judge was being somewhat standoffish in his new position. After that, though, class lectures became much more easy going and he revealed himself to be a witty, funny guy. At the same time, several years later when I read his book Slouching Toward Gommorah, I realized that we had indeed dodged a bullet when he was denied confirmed those many years ago.

In some sense, then, I suppose we can say that we can thank Robert Bork and his voluminous and controversial record of writing for Justice Anthony Kennedy and, in the end, Obergefell v. Hodges. I am quite certain that Judge Bork would not be pleased with this legacy.

FILED UNDER: Law and the Courts, US Politics, , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Argon says:

    Was Bork intelligent and well read in the law? No doubt. Was he far out of mainstream thought on many ideas of jurisprudence? Yes, apparently by miles.I’m not a big fan of the cult of ‘originalism’, but he was out there by most standards.

    He was also in with Intelligent Design and other nonsense in his later years, migrating to more and more conservative views. I believe the country dodged a bullet when it rejected his nomination for Supreme Court. He’d be great for the purpose of intellectual debate but I wouldn’t want his hands anywhere near the actual mechanisms of government.

  2. Hal_10000 says:

    For some reason, Bork always reminded me of that Lazarus dude from the old Star Trek episode the Alternative Factor. Was he going to destroy two universes? I dunno but we shouldn’t have risked it.

  3. Mikey says:

    @Argon: This is an interesting take from a liberal columnist on Bork’s place in the continuum of mainstream judicial thought.

    http://www.nytimes.com/2011/10/22/opinion/nocera-the-ugliness-all-started-with-bork.html?_r=0

  4. stonetools says:

    It was arguably the first example of a form of judicial confirmation hearing that has become quite common today, and which has led nominees appointed by Presidents of both parties to give vague, rehearsed answers that don’t really tell us anything

    Actually, I think it’s it’s the conservative justices who give those vague answers, largely because their positions are more controversial and less popular. Liberal judges tended to be more forthright.
    Now of course, it doesn’t matter the Justices say. The lines are so clear on many issues-campaign reform, voting rights-there is little doubt how a candidate nominated by a Democratic or Republican President is going to vote on a particular issue of constiutional law, most of the time.

  5. @Argon:

    Bork was so far outside of the mainstream, that he was to the extreme right of Scalia.

    There’s your answer right there.

    And I would remind everyone that Scalia has been in the majority of many “non-conservative” opinions. For example. the flag-burning case, Texas v. Johnson. In interviews, Scalia has said that personally he finds flag burning utterly offensive, but as a matter of law it is protected speech. Judge Bork would have disagreed with that.

    And another member of the majority in Johnson? Anthony Kennedy.

    Case closed.

  6. Davebo says:

    Bork ended up carrying out the order, for which he was criticized until he died in 2012 even though at the time his rationale for doing so was the rather reasonable idea of maintaining some degree of continuity at the Justice Department.

    Interesting. What I’ve always read was that Bork’s rationale was He might not agree with a particular Presidential order, he said, but nonetheless felt a duty to carry it out.

    Interestingly, in that account at the time Bork never actually said he didn’t agree with the order.

    The only time I’ve heard the “preserve continuity at Justice” excuse was in Gerald Ford’s accounting.

    when thrust into a very difficult situation, acted with integrity to preserve the continuity of both the Justice Department and the Special Prosecutor’s investigation.

    How exactly firing the Special Prosecutor helped preserve the continuity of his investigation I suppose only Ford nows.

  7. Tony W says:

    I am quite certain that Judge Bork would not be pleased with this legacy.

    But Reagan’s apologists, eventually, will be.

  8. Kylopod says:

    @Doug Mataconis:

    Judge Bork would have disagreed with that

    He actually wrote an essay on the topic around the time. It was even more cringe-worthy than the dissenting opinions by Justices Rehnquist and Stevens in the actual case. He actually compared burning a flag to protesting anti-sodomy laws by engaging in the practice in public. (I’m not remotely exaggerating.) That should give you some idea of his insight into homosexuality and not just flag burning.

  9. michael reynolds says:

    It was arguably the first example of a form of judicial confirmation hearing that has become quite common today, and which has led nominees appointed by Presidents of both parties to give vague, rehearsed answers that don’t really tell us anything.

    Actually what we found out is that esteemed judges will happily lie under oath, obfuscate, mislead and refuse to cooperate with constitutional authority in order to advance their careers.

    The Senate has a right to know where nominees stand. The fact that so many will lie to avoid being held accountable for their decisions ought to be appalling. It ought to be intolerable.

    Any justice of the modern era ought to recuse himself on separation of powers cases since they manifestly subverted that very separation in pursuit of their own advancement.

  10. Pinky says:

    Michael, I think you’ve got it backwards in almost every respect.

    First of all, what a judge thinks about a particular issue shouldn’t tell you anything about how he’d rule on a case involving that issue. But some people think it is (or should be) an indicator, so administrations are more likely to send up nominees that have a weaker paper trail. That’s the only obfuscation I see. Beyond that, Republican-nominated justices seem far less likely to stick to Party principles in their rulings than Democratic-nominated justices. So on a practical level, the only hint of fraud is on the D side. But even there, the nominees don’t hide what their judicial philosophies are. It’s the Senators (again, mostly Democratic, but some Republican) who can’t comprehend that, and want justices who will rule a certain way. So I’d say across the board, it’s the executive and legislative branches who are failing in their duties, followed by a few in the judicial branch.

  11. michael reynolds says:

    @Pinky:

    Oh, baloney.

    100% of judges in the United States know how they feel about Roe v. Wade. And a 100% of nominees lie to the Senate and pretend they don’t.

    Hmmm, why I don’t know whether I like Roe v. Wade, I’ve spent 30 years in con law and that issue has never crossed my innocent little mind.

    It’s a flat-out lie, a lie they tell to get a job, a lie they tell to subvert the clear intent of the US Constitution that gave the Senate the job of vetting them. And they do it by sitting down ahead of time with political hacks who carefully train them to lie. They conspire with professional political liars to shape the lies they’ll tell to get the job.

    This is the Supreme Court that elected George W. Bush on a straight party line vote. “Judicial philosophy” my ass.

  12. Pinky says:

    @michael reynolds: You’re misrepresenting what I said (I think), and making up stories to fit your belief. That’s not really a response.

  13. JohnMcC says:

    @Pinky: “…(F)irst of all what a judge thinks about a particular issue shouldn’t tell you anything about how he’d rule on a case…” And “…Republican-nominated justices seem far less likely to stick to party principles than Democratic-nominated justices.”

    First: Citation?

    Second: As said above – baloney.

    Third: Bush v Gore

    Three strikes in three pitches. YerOut!

  14. OzarkHillbilly says:

    @JohnMcC: On pinky’s first point, he’s unequivocally right. Why else all the hate for Roberts right now from the right? On the 2nd point, he’s a little jaundiced by the past week. I think we can cut pinky a little slack there. Your 3rd point reveals a little jaundice on your own part.

    It is easy to lose sight of the forest when looking at trees.

  15. humanoid.panda says:

    @OzarkHillbilly: Pinky is right about liberals being a block and GOP judges splintering but people who study the Supreme Court have a good explanation of this. Basically, once the political composition of the court becomes known, lawyers adjust their expectations: conservative lawyers push more and more under a conservative court, and liberal lawyers become emboldened under a liberal one. Therefore, courts increasingly give cert to cases that splinter more cautious conservative (or liberal) justices from their more hard-core brethren, and rebalance the court towards the center. This is the dynamic happening now, and it happened before in the late 1960s when moderate liberal judges started siding with Nixon nominees to restrain the rights revolution of the Warren court. In the same way, if as I fervently hope to, Hillary gets to appoint the next four justices, you will start seeing the liberal bloc splitting up: I boldly predict than in a court with a liberal majority, Sotomayor and Kagan, who vote as one now, will have strikingly diverging records.

  16. Mikey says:

    @michael reynolds: I recall Roberts being quite forthcoming with his opinion on Roe v. Wade being settled law with precedential effect, and therefore entitled to respect under the doctrine of stare decisis.

    Maybe you’re thinking of nominees’ opinions on abortion? They tend to keep those to themselves, sure, and Roberts did, too. But on the ruling itself, he gave a clear statement.

  17. OzarkHillbilly says:

    @humanoid.panda:

    people who study the Supreme Court have a good explanation of this.

    Yep, exactly.

  18. Lenoxus says:

    @Doug Mataconis: I’m under 30, and I found out about the 1989 flag decision when reading about Scalia somewhere, maybe Wikipedia.

    I’m flabbergasted that it came so close, because when I learned civics in school, I was explicitly told that free speech implied the ability to criticize one’s country/government — as in, criticizing the government was always the go-to example teachers, textbooks, and other sources gave. I may have been unsure whether there could be a law against, say, swearing, but it was always obvious to me that you could burn any flag (provided that you owned it and weren’t being unsafe), and that not being allowed to do so was a key indicator of dictatorship.

    But then, the more I think about it, I’m just as surprised that Scalia was the deciding vote. I feel like he might not make the same choice today, 20 years later.

    It’s still so weird how many people in this country think flag-burning laws wouldn’t be unconstitutional, or that they would be a good idea in any event. Like, the right answer on this ought to be so obvious that politicians would loudly accuse one another of secretly supporting laws against flag-burning. But no, instead you have routine congressional votes for it, even now after Texas v Johnson.

  19. Kylopod says:

    @Lenoxus: One thing I’ve found over the years is a tremendous gulf between elites and the masses when it comes to anti-flag-burning views. For example, when I discussed the topic with my maternal grandparents, they supported a ban on flag burning. But then, my grandparents (both Holocaust survivors) also unhesitatingly supported a ban on the Nazis marching in Skokie, and they were a bit flabbergasted that either I or my parents would think otherwise. In other words, they were pretty open about the fact that they’d outlaw speech they didn’t like. And that’s something I’ve seen from a lot of people I’ve met–the typical attitude is along the lines of “I support free speech, but….”

    Among conservative elites, however, they always end up arguing that flag burning is not “speech” in any sense. Furthermore, neither of the dissenting opinions in the flag burning decision–one by Rehnquist, the other by Stevens–questioned the concept of symbolic speech established by two earlier Court decisions. Neither did Bork’s essay, for that matter. Yet a lot of conservative activists I’ve encountered seem to take it for granted that the First Amendment only protects verbal and written communication. (By that logic, the government could ban political cartoons and paintings.) Rehnquist argued basically that the act of burning a flag had no inherent communicative content, and therefore could be prohibited as an action without regard to what the flag burner intended to communicate. The flaw in this argument was pointed out in the majority piece: the Texas law actually permitted the incineration of old or torn flags, the standard method of disposal. The fact that the law made that exemption revealed that it was targeting flag-burning as a form of anti-government protest. Rehnquist, Stevens, and Bork all seemed to twist themselves into a pretzel to avoid admitting the obvious, which is that what makes flag burning offensive is the message it communicates, not the act itself.

  20. Hal_10000 says:

    @Lenoxus:

    But then, the more I think about it, I’m just as surprised that Scalia was the deciding vote. I feel like he might not make the same choice today, 20 years later.

    Scalia can surprise you sometimes. He has on multiple occasions sided with the liberal wing of the Court on issues of civil liberties. Not consistently enough, unfortunately.

  21. Pinky says:

    @Hal_10000:

    He has on multiple occasions sided with the liberal wing of the Court on issues of civil liberties.

    But Michael and John said “baloney”, and you can’t argue with that.

    I’ve found that lawyers don’t look at Supreme Court decisions as left vs. right, but reporters and bloggers do. Now, reporters, bloggers, and lawyers are some of the least-liked people in the world, so I don’t want to ally with any of them, but I have to side with the lawyers on this, considering they have a much better record of predicting the outcome of cases.

    Lenoxus’s example fits perfectly. If you look at what Scalia believes about the law, his decision makes sense. If you look at what political hacks say about what Scalia believes about the law, it doesn’t. If you look at what Thomas, or Roberts, say about their judicial philosophy, you can see that when they disagree, they do so consistently with their philosophical claims. Roberts will try to support passed legislation. Thomas would overturn anything he thinks was decided wrong. That’s the way they claim to think, and it’s how they vote.

    I haven’t spent much time looking at how the Democratic-nominated justices think. They do seem to cluster together more than the Republican-nominated, but there are probably a lot of interesting things to be learned in the cases where they disagree.

  22. Grewgills says:

    Scalia is much more ideologue than partisan. Whichever way Scalia goes Alito will go. Thomas is a bitter partisan who can always be counted on to support the conservative Republican position. Roberts doesn’t seem quite as locked in as the other three.

  23. @Doug:

    several years later when I read his book Slouching Toward Gommorah, I realized that we had indeed dodged a bullet when he was denied confirmed those many years ago.

    I had a similar experience reading that book.