What if Robert Bork Had Been Nominated in 1986 Instead of Scalia?

At his Balkinization blog, Yale law professor Jack Balkin has a fascinating post on the ways in which legal history might have changed if Robert Bork had been nominated to the Supreme Court in 1986 rather than 1987:

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…..

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….

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….

Despite Bork’s defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more…..

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…..

I think this argument has some validity. Had Bork been nominated in 1986 and Scalia in 1987, there is a real chance that both would have gotten on the Court, and constitutional doctrine would have been more conservative as a result. But I also think that Balkin probably exaggerates the extent of the difference.

It is unlikely that avoiding a confirmation battle in 1987 would have avoided ideological conflict over judicial nominations indefinitely. Given the deep ideological and partisan disagreements over constitutional law that had emerged by the 1980s, it was almost inevitable that something like the Bork nomination would happen sooner or later. If Bork had been confirmed in 1986 and George H.W. Bush had nominated a strong conservative in 1990 instead of David Souter, the Democratic-controlled Senate might well have rejected that nominee. The experience of having Bork and Scalia on the Court, writing strongly conservative opinions, might actually have stiffened Democrats’ determination to prevent another similar conservative from getting confirmed. The Senate might have insisted on a Souter-style “stealth nominee” in 1990. They might have narrowly rejected Clarence Thomas in 1991 instead of narrowly confirming him by a 52-48 margin.

The Bork battle was an important immediate catalyst for ideological conflict over judicial nominations, but not the root cause. It caused the war over nominations in much the same way as the assassination of Archduke Franz Ferdinand “caused” World War I. In both cases, the immediate cause of conflict merely heated up a long-brewing preexisting antagonism.

Finally, even a firmly established conservative majority on the Supreme Court probably would not have led to a constitutional “transformation” on the scale of “the New Deal Revolution or the glory days of the Warren Court.” In those latter cases, the Supreme Court was able to effect sweeping change in part because it was supported by a strong political majority. Liberal Democrats dominated the political scene throughout most of the 1930s and also the 1960s (at least until 1968). Conservative Republicans never achieved comparable dominance in the 1980s and 1990s.

The Supreme Court does not simply “follow the election returns.” Sometimes, it issues opinions that go against majority views or those of the dominant political coalition of the moment. But the Court does face significant political constraints, and the justices know there is only so far they can push public opinion and the political branches of government before the latter push back. A constitutional revolution on the scale of the New Deal and the Warren Court requires more external political support than the Rehnquist and Roberts Courts were ever likely to achieve between 1986 and the present.

Had Bork gotten on the Supreme Court in 1986, it would have made a significant difference. But it probably would not have caused a massive constitutional revolution.