The Tempting of America by {author}: summary and why it matters

What it argues

Bork, a former judge and scholar, argued that the only legitimate way to interpret the Constitution is to follow the original understanding of its text and structure. Any other approach, he claimed, requires judges to impose values of their own, and in a democracy values should be chosen by elected legislatures.

He traced the history of the problem from the Founding through the Lochner era, when courts struck down economic regulation, to the Warren and Burger courts, whose decisions on privacy and equal protection, such as Griswold and Roe v. Wade, he considered unmoored from the text. He criticized both liberal activism and the claims of those on the right who wanted judges to implement a conservative agenda.

A good part of the book recounts the 1987 Senate fight over his nomination to the Supreme Court, which the Senate rejected, and which gave a new verb to politics.

Why it matters

The book is a major source of the originalist movement among lawyers and judges, and it is also an object lesson in how judicial nominations became partisan battles. Not every originalist agrees with Bork on every case, and some think he gave too little weight to precedent.

About the author

Robert H. Bork (1927-2012) taught at Yale Law School and served as Solicitor General and later as a judge of the D.C. Circuit. He was involved in the Saturday Night Massacre of 1973 as the acting attorney general who fired the Watergate special prosecutor. President Reagan nominated him to the Supreme Court in 1987, and the Senate voted 58 to 42 against.

Who should read it

Readers who follow court appointments.