National Review has posted an on-line symposium in honor of Judge Robert Bork, the great legal scholar and jurist who passed away today. Here is an excerpt from my contribution:
Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum….
Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center….
In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power…. Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.
The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.
I previously wrote about Judge Bork’s legal and political thought (mostly focusing on the differences between us) here and here, and in this 2008 article for a symposium on Bork’s work. Readers of those pieces will see that I have many reservations about Bork’s ideas. Nonetheless, he was a giant of late 20th century legal thought, and will be remembered as such. The fact that we are still debating his work decades after his most influential books and articles were published is in itself a major testament to his significance.
I only briefly met Judge Bork. For that reason, I have focused these reflections on his legal and political thought rather than my very limited personal impressions of the man. But I would like to take this opportunity to extend condolences to Judge Bork’s family, friends, and professional colleagues, some of whom may perhaps be readers of this blog.
UPDATE: The symposium also includes a good contribution by co-blogger Jonathan Adler.