'Robert Bork Wouldn't Have Changed History'? Not So Sure About That.

A columnist argues that Robert Bork wouldn't have changed history. If this sounds crazy, that's because it is.

In the immediate aftermath of Obergefell, a few pundits mused over how different the world would be if Justice Kennedy had never made it onto the Supreme Court. Everyone, of all political stripes, nodded in agreement. As any student of the 1980s knows, the effort to scuttle Judge Robert Bork’s Supreme Court nomination, spearheaded by Senator Ted Kennedy and then-Senator Joe Biden, blocked the Reagan Administration’s effort to anchor the Court to the right of Attila for decades. After a pot-addled detour through Judge Douglas H. Ginsburg, Reagan finally settled on a candidate that the Democrats could support and bequeathed upon us Justice Anthony M. Kennedy — a sound conservative with a moderate streak for abortion and gay rights. Court changed.

And then I see this Jonathan Bernstein column at Bloomberg View, “Robert Bork Wouldn’t Have Changed History.” To paraphrase Eli Cash from The Royal Tanenbaums, “everyone knows blocking Robert Bork altered the philosophical composition of the Court on key issues. What Bernstein’s post presupposes is… maybe it didn’t?” Go on…

Few phenomena of “New Media” are as widely practiced and thoroughly reviled as the so-called “hot take” — the smarmy contrarian position hacked up to “challenge conventional wisdom,” which is to say “generate baseless controversy.” The “hot take” is the hipster of discourse.

And this case is even more egregious because Bernstein’s ultimate point is that Bork wouldn’t have changed history because Democrats won the Senate in 1986 and blocked the nomination, which is less a “hot take” than a “recitation of history.” But before writing off Bernstein’s article as fluff hiding behind a deceptive title, he makes a couple of other arguments against the historical significance of a Bork confirmation that deserve dispelling.

Bernstein’s best point counters the hip conservative argument that a Justice Bork would have swayed public opinion to the far right by the power of his body of written opinions.

[Michael] Potemra, speaking of Bork, argues that the Supreme Court “platform would have given him an outsized opportunity to influence America’s cultural and constitutional discussion — and that America would have been significantly less likely to embrace the sort of the change the Court affirmed today.”

That’s bunk, and not just because Bork died in 2012 (meaning that he would have been replaced by a Barack Obama nominee if he had still been a justice at the time). Bork’s testimony at his confirmation hearing helped turn public opinion against him, so there’s no reason to believe that judicial opinions he might have written would have increased support for his views.

Not to mention that Justice Antonin Scalia isn’t exactly chopped liver on this count and he’s failed to prevent America from embracing this sort of jiggery-pokery. But then Bernstein takes this point way too far in his effort to craft a universal hot take.

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If anything, a Supreme Court more conservative than the country would be more likely to cause a backlash against Republicans (as the liberal courts of the 1960s likely did against Democrats) than to “educate” the public into becoming conservative.

This is based on… nothing. One would be hard-pressed to find succor for the argument that the Warren Court tilted the country against the Democrats as opposed to, say, the Vietnam War and having its strongest electoral candidate in RFK gunned down before the convention. Even if one wanted to make the argument that the fractured Roosevelt coalition of working-class liberals and racists fueled GOP success, the focal points of that break were the Civil Rights Act and the Voting Rights Act, not the Court. Indeed, empirical evidence suggests that the public doesn’t backlash against a politicized Court, but rather doubles down on the idea of political appointments. And yet, few voters make the Supreme Court a top voting issue, reinforcing that ultimately people don’t really care much about the Supreme Court and given distance from big decisions tend to gravitate back toward a neutral view of the body.

But let’s go back to the point Bernstein glances over: Bork died in December 2012. One need look no further than Planned Parenthood v. Casey in 1992. With Bork on the Court, a 5-4 majority of Rehnquist, White, Scalia, Bork, and Thomas strikes down Roe v. Wade. That’s a fundamental change that would have triggered unforeseeable repercussions. And what about Bork’s passing? Had he remained on the Court until his death, a newly elected Barack Obama would have an additional liberal-leaning justice on the Court. Marriage equality could be over and done with. Would conservatives have even bothered with Obamacare challenges? Or what if an aging Bork stepped down before 2012? George W. Bush would have another young justice on the Court, one who not only would hold the line on marriage and abortion, but who would sit there for upwards of 20 years.

Finally, even Bernstein’s point that the Democratic surge in 1986 guaranteed Bork would stay off the bench has its own problems:

Mostly, the story of how Bork was defeated and how Kennedy was confirmed is an excellent example of how the political system is supposed to work. Reagan, re-elected in a landslide in 1984, chose Bork to seal a conservative majority on the court.

But Senate Democrats had won their own landslide in 1986, and liberals led by Edward Kennedy moved quickly to oppose Bork. Eventually, 58 senators voted against confirming him, including six Republicans and all but two Democrats. Then the Senate easily confirmed Anthony Kennedy with a solid bipartisan vote.

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Except this theory of “how the political system is supposed to work” relies on the broken nature of off-year elections. Voter turnout in 1986 was the lowest since 1942. With the Reagan Administration still clinging to its pre-“we sold weapons to Ayatollah Khomeini and lied about it” levels, a representative election could well have saved the GOP Senate — several Democratic pickups were by razor-thin margins. The point is, it’s problematic to exalt “the system” when the system itself relied on an electoral quirk.

The fact of the matter is that Robert Bork would have changed history, for good or ill. Bernstein’s right that Bork is not “conservative Jesus” able to wave his hands and transform the populace into latter-day Reaganauts, but it’s equally ridiculous to suggest that a voting Justice Bork would not have altered the judicial landscape. Perhaps Bernstein’s point is that America would have reached marriage equality either way. Fair enough, but Bork — and whoever replaced him — could have changed a lot of landmarks on that journey.

And “the system” may not be able to alter America’s destiny the next time.

Robert Bork Wouldn’t Have Changed History [Bloomberg View]