There are many reasons why Bork was clearly ill-suited to the Supreme Court, but he was also an intellectual giant with a keen understanding of both political and judicial process. At his best, Bork was a voice for the kind of judicial restraint that conservatives all but abandoned the minute President Obama took office. Progressives will find little to like in Slouching Towards Gomorrah — which is, at it’s heart, a rejection of cultural modernity — but Bork is right to warn in that book against an ideology that “think[s] democracy is tyranny and government by judges is freedom.” Bork intended those words as an attack on social liberals, but they aptly describe the kind of conservatism that would declare Obamacare unconstitutional.
At times, Bork was even willing to direct his calls for judicial restraint at the decisions most beloved by the far right. Lochner v. New York, the 1905 decision which held that basic laws intended to protect workers are unconstitutional, is experiencing a renaissance among the conservative legal movement’s most ideological thinkers, but Bork wanted no part of it. He called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”
Similarly, in 1983, at a time when Republicans were ascendant and eager to write their policy preferences into our founding document, Bork penned a thoughtful essay warning that a Balanced Budget Amendment would do little more than transfer power to a judicial branch that was poorly-equipped to set budget policy. As Bork explained, the result of such an amendment “would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.” The 234 members of the House who voted for much more intense version of the same amendment would have done well to listen to Bork’s counsel.
Bork came of age at a time when liberal judges dominated the courts. He spent the formative years of his career watching the Supreme Court hand down decisions that he hates — and, lest there be any doubt, the targets of his ire vindicate the bipartisan coalition of senators who kept him off the high Court. Bork once said the federal ban on employment discrimination and whites-only lunch counters is rooted in a “principle of unsurpassed ugliness.” He called a Supreme Court decision holding that married couples have a right to contraception “utterly specious” and a “time bomb.” And he recently called the very idea that gender discrimination exists “silly,” adding that women “aren’t discriminated against anymore.”
And yet, Bork’s early years taught him a healthy caution against a too-powerful judiciary. Today’s conservatives, by contrast, have only known one thing — an ideological Supreme Court eager to achieve the conservative movement’s goals from the bench. So they have always seen overreaching judges as their allies. There is a lot not to like about Robert Bork’s record, but America would be a better place if modern conservatives recognized what Bork did — that the courts are a terrible place to push your economic agenda.