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.
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:
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. Evans, a 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.