BorkEdit
Robert Bork was a towering figure in late 20th-century American law, whose work as a legal scholar and judge helped anchor a rigorous, text-first approach to constitutional interpretation. His 1987 nomination to the Supreme Court of the United States became a defining moment in political clashes over how the law should be read and what role the courts should play in shaping society. The senate’s rejection of his nomination — an event that spawned the term “borking” to describe aggressive ideological opposition to nominees — underscored a broader contest over the direction of American jurisprudence that continues to echo in judicial confirmations and intellectual debates.
This article surveys Bork’s career, his distinctive jurisprudential approach, the circumstances and consequences of the 1987 nomination, and his lasting influence on the culture of American law. It also explains why supporters saw his philosophy as a necessary check on judicial activism, and why critics argued it would roll back hard-won rights and protections.
Career and public service
Bork rose to prominence as a scholar and practitioner who emphasized limits on judicial power and fidelity to the Constitution’s original text. He served in high-level legal posts, including as Solicitor General of the United States, where he argued important cases before the Supreme Court. He later served as a judge on the United States Court of Appeals for the District of Columbia Circuit, where his opinions on antitrust enforcement, federal power, and civil liberties helped define a conservative, restraint-based approach to constitutional adjudication. His writings, lectures, and testimony repeatedly defended a view of the law that privileges stable, textual interpretations over evolving social theories.
In academia and public life, Bork argued that the Constitution should be understood as a charter with fixed meanings, and that judges should avoid injecting policy preferences into constitutional interpretation. His work on antitrust policy and regulatory law also reflected a skepticism about expanding federal power beyond what the text and structure of the Constitution permit. For readers seeking his broader influence beyond the courtroom, his influential books and essays—such as The Tempting of America—provide a window into his philosophy of constitutional restraint.
Judicial philosophy
Central to Bork’s approach was originalism, a doctrine insisting that the Constitution’s meaning is fixed at the time of ratification and should constrain how judges decide cases today. Linked to this was textualism—the insistence that statutes and constitutional provisions should be applied according to their ordinary meaning, rather than inferred from desired outcomes or social experiments.
From this vantage, many rights that are not explicitly enumerated in the text are not, in Bork’s view, automatically protected by the judiciary. He urged courts to defer to legislative branches on policy questions and to treat constitutional structure—federalism, separation of powers, and enumerated powers—as guardrails against judicial overreach. His skepticism toward expansive readings of the Commerce Clause and his concern about privacy or abortion jurisprudence arising from broad constitutional interpretations became a defining point of contention in the public debates surrounding his nomination.
Proponents of Bork’s philosophy argue that it preserves political accountable government by keeping constitutional decision-making close to the people’s elected representatives. They contend that standing fast to text and original intent helps prevent judges from becoming legislators under the guise of interpreting rights. Critics, however, charge that a strict originalist stance can foreclose protections that modern society deems essential and may hinder progress on civil rights and personal liberties. The debate over Bork’s views continues to animate discussions of how best to balance liberty, equality, and democratic legitimacy.
1987 nomination to the Supreme Court
In 1987, President Ronald Reagan nominated Bork to the Supreme Court of the United States to fill the seat vacated by Justice Lewis F. Powell, Jr.. The nomination ignited a fierce political contest that fused concerns about civil rights, abortion, and the proper reach of the federal judiciary. Supporters framed the nomination as a test of whether the Court should be guided by a disciplined originalism and judicial restraint, while opponents warned that Bork’s philosophy would threaten established rights and enable a rollback of long-standing protections.
During the confirmation hearings, critics articulated fears that Bork’s approach would undermine decisions like Roe v. Wade and other landmark civil rights rulings, arguing that his textualism and distrust of judicial activism would prevent the Court from safeguarding vulnerable groups. Defenders countered that his views would restore constitutional order and prevent judges from transmuting unenumerated preferences into law. The Senate ultimately did not confirm the nomination, with a [vote] outcome that underscored the era’s deep political polarization around constitutional interpretation and the proper scope of federal power. The episode left a lasting imprint on how judicial nominations are framed and contested in American politics.
Aftermath and influence
The rejection of Bork’s nomination coined and popularized the term “borking,” a reference now used in political discourse to describe campaigns aimed at blocking nominees on ideological grounds. The episode accelerated a broader mobilization around originalist and restraint-based jurisprudence, contributing to the rise of organizations and networks dedicated to advancing these views in law schools, legal practice, and the federal judiciary. Over time, figures such as Antonin Scalia and later appointees would crystallize a movement that sought a more literal interpretation of the Constitution and a more cautious approach to expanding federal reach.
Bork’s scholarship and public critique of expansive privacy and civil rights jurisprudence helped shape debates about the proper role of the courts in a constitutional framework that prioritizes limits on judicial power and the protection of legislative authority. His legacy is felt in both the arguments advanced by supporters who favor judicial restraint and in the ongoing discussions about how best to reconcile constitutional text with evolving social norms. In the long arc of American constitutional development, Bork’s work remains a touchstone for discussions of interpretation, precedent, and the proper balance of power among the branches of government.