Constitutionalists on Trial Part 1: Robert Bork

Periodically, I will highlight some major legal figures and their contributions to Constitutional law.  Many discussed will stand out because they stood firm on their Constitutionalist beliefs despite the pressure from societal forces to discredit them and restrict their voice. The series will be titled Constitutionalists on Trial.

The first installment will present one of the modern fathers of Constitutionalism, Robert Bork. A more detailed analysis of his legal theory that I composed was published by the St. John’s Law Review Online Commentary and can be found here.[1] I credit Robert Bork and his book, “The Tempting of America”[2]  as being a central influence on me when I crafted my perspective on Constitutional law. His analysis on Constitutional law and breaking down the problematic position the Supreme Court has placed the nation in over the last few decades has inspired me to present this information to others, in an effort to educate and inform. Bork

Judge Robert Bork was appointed to the Supreme Court in 1987 by President Ronald Reagan. He previously served on the Federal Court of Appeals for the D.C. Circuit and had never been reversed by the Supreme Court. The D.C. Circuit is considered among the most powerful and influential and several Supreme Court Justices served time there before being nominated to the Supreme Court.  Throughout his career leading up to the appointment by President Reagan, Bork presented himself as a harsh critic of some of the major societal altering decisions such as Griswold v. Connecticut[3] and Roe v. Wade[4].  His critique of these decisions stemmed from the belief that the Supreme Court far exceeded its boundaries of power by declaring that certain fundamental rights existed with no firm Constitutional root. In the process, the voice of democracy and state legislative decisions were replaced with judicial activism. This problem continues to this day.

Sadly, Bork was the victim of a relentless distortion machine led by the late Senator Ted Kennedy and former Vice-President and then Senator Joe Biden. In addition, millions were spent and funneled through the media to defame Bork’s name and miscategorize his legal philosophy to turn the public tide and ultimately the senate against his appointment.  A common attack line was claiming that Bork waged a war against women because he sought the overturn of Roe. This distortion resonated with many of the societal forces that would reject his nomination. The senate leadership that promoted this myth did a great disservice to this country, as Judge Bork would have served valiantly on the Supreme Court and had sought to return a sense of Constitutionalism to the nation’s highest court.

However, I will conclude with this takeaway that many should consider when reflecting on the legacy of Judge Bork.  As the distortion machine began to increase in strength and continue to spread lies, Judge Bork did not back down, rather he persevered. Despite the hostile questioning that arguably was done for flashy media attention during the hearings, he tied his responses back towards the Constitution to put pressure on the senators and challenge them. He also did not go away quietly. Rather than withdraw his nomination and buckle under the public pressure, he was determined to see the final vote. The senate ultimately voted against him 58-42 and rejected his nomination. However, his legacy remains through his philosophy and willingness to persevere even if the outcome is not optimal.  Judge Bork, your ideas will continue to live through the modern Constitutionalists and it is our mission to make sure the movement you started will one day deliver practical results at the highest levels of law.

Thank You

[1] Michael DeBenedetto; A Borkean Revival, St. John’s L. Rev. Online Commentary (2017).

[2] Robert Bork, The Tempting of America: The Political Seduction of the Law, New York. Touchstone. (1991).

[3 381 U.S. 479 (1965). Griswold established a fundamental right to privacy. It overturned a Connecticut State Statue that banned the use of contraception.

[4] 410 U.S. 113 (1973).  Roe established a fundamental right to abortion and invalidated the laws of many states that banned the practice of abortion.

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