Balkinization  

Wednesday, December 19, 2012

Robert Bork and the Contingencies of History

JB


Robert Bork's passing reminds us of how much the development of constitutional doctrine depends on contingencies.   Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger's retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate.  You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork's remarkable paper trail of opposition to civil rights and civil liberties.  Scalia had not, for example, opposed the 1964 Civil Rights Act on grounds of individual liberty (Bork later recanted his opposition), and Scalia had not argued in a famous law review article that non-political speech was unprotected by the First Amendment.

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years.

This last statement, of course, conceals its own contingencies. We don't know whether O'Connor would have voted the same way she did in Webster and Casey, and we don't know whether George H.W. Bush would have nominated Souter and Thomas to replace Brennan and Marshall. If Bork was successfully nominated in 1986, and Scalia avoided the same treatment that Bork received in 1987, then the Bork hearings wouldn't have happened, and no precedent of bitter and polarizing confirmation battles would have been established.

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired.  Therefore there might have been no "stealth nomination" of David Souter-- and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court.  (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court. A five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones might have cut a broad swath through existing liberal doctrines, and the cause of gay rights would have made almost no progress.

This didn't happen. Reagan miscalculated, or rather, he didn't foresee the Iran-Contra scandal and losing the Senate in the 1986 elections. Democrats saw their chance and fought hard to defeat Bork. Then, after Bork was defeated, the fracas over Douglas Ginsburg's marijuana use (this was 1987 after all) wasted more precious time, and by then the 1988 elections were less than a year away. Eager to put the appointment mess behind him, Reagan nominated the more moderate Anthony Kennedy. George H.W. Bush chose David Souter to avoid a replay of the Bork nomination, and the rest, as they say, is history.

In Bork's subsequent career as an author and pundit he moved decisively from economic libertarian to social and religious conservative, and he became increasingly bitter and disdainful of what he viewed as the decline of American culture. This does not speak well for what he would have done as a Supreme Court Justice. Indeed, he might have made Scalia seem positively cheerful and moderate by comparison.

Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor and Solicitor General).

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation. As it is, the Rehnquist and Roberts Courts have moved doctrine considerably to the right in a number of areas. One can only imagine what a Court staffed with Bork, Scalia and Thomas might have done.


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