Robert Bork: life, ideas and books

Life

Robert Bork was born in Pittsburgh in 1927 and served as a second lieutenant in the Marine Corps during the Korean War. He earned his B.A. and J.D. at the University of Chicago, in 1948 and 1953. He taught at Yale Law School from 1962 to 1981 and was Solicitor General of the United States from 1973 to 1977 under Presidents Nixon and Ford, serving also as acting Attorney General from October 1973 to January 1974, during the dismissal of the Watergate special prosecutor known as the Saturday Night Massacre.

He served on the U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987 President Reagan nominated him to the Supreme Court and the Senate rejected the nomination by 42 to 58. Afterwards he taught at George Mason University School of Law and other institutions and died in 2012.

Ideas

Bork argued that judges should interpret the Constitution according to its original understanding and apply neutral principles rather than their own values, since otherwise unelected judges rule by preference. In antitrust, he argued in The Antitrust Paradox (1978) that the law's goal should be consumer welfare, not the protection of small competitors, and that many mergers and business arrangements that were then condemned in fact benefit consumers. That argument, with the work of the Chicago school and Richard Posner, changed Supreme Court doctrine from the 1970s onward.

In Slouching Towards Gomorrah (1996) he turned to cultural criticism, lamenting what he regarded as the decline of American moral standards.

Major works

• The Antitrust Paradox (1978).
• The Tempting of America (1990), on constitutional interpretation and his nomination.
• Slouching Towards Gomorrah (1996).

Why conservatives read him

Bork was the leading academic voice for originalism before it became a mainstream judicial position, and his writing influenced Antonin Scalia and William Rehnquist. The defeat of his nomination became a landmark in the politics of judicial confirmation and gave English the verb "to bork", which the Oxford English Dictionary added in 2002. Conservatives remember the hearings as a turning point in how the parties fight over the courts.

His antitrust views, by contrast, are still debated beyond the right, including by critics who think consumer-welfare standards have made markets too concentrated. His originalism was also disputed within the movement: Harry Jaffa argued that original intent could not be understood apart from natural right, and Bork rejected that move. In a curious aftermath, a newspaper's publication of his video rental records contributed to the Video Privacy Protection Act of 1988. Whatever one makes of his positions, his books remain the clearest statement of the case for judicial restraint.