Judge Bork R.I.P.

(Editor’s note: The following is excerpted from the introductory remarks delivered by Clifford W. Taylor, former chief justice of the Michigan Supreme Court and member of the Mackinac Center’s Board of Directors, at an 80th birthday celebration held in April 2007 for Judge Robert Bork, who passed away Wednesday.)

It is a privilege just to be on the same program with Robert Bork, much less have the happy task of introducing him. I think history will continue to bear out what we already know: that both in the United States and abroad, Robert Bork is the leading figure in ending the intellectual monopoly that activist judges and scholars held over constitutional jurisprudence.

In his 1978 book “The Antitrust Paradox,” Judge Bork wrote that “one of the uses of history is to free us from a falsely imagined past. The less we know of how ideas actually took root and grew, the more apt we are to accept them unquestioningly, as inevitable features of the world in which we move.”

I think Robert Bork’s legacy is precisely that he did free the rest of us, or at least those who would listen, from a falsely imagined view of the law, from unquestioning acceptance of an imperial judiciary and constantly morphing Constitution. Not only that, he propelled the debate over judicial activism vs. judicial restraint headlong into the popular press and the public consciousness, where it remains to this day.

The debate reached fever pitch in 1987, during the battle over Judge Bork’s nomination to the United States Supreme Court. Suddenly the academy was forced, by a most capable, learned and articulate opponent, to defend the proposition that it was wrong, and should be ended, for the judiciary, at any time, to deform the Constitution to make it correspond to contemporary political norms.

As you may recall, National Public Radio broadcast the Senate Judiciary Committee hearings gavel-to-gavel and I, fortunately on the road for depositions, listened to them as I could. The hearings were a revelation, and not just because we got an insight into the brilliance of such as Sen. Biden and his understanding of the works of Richard Epstein. More importantly, here was this prophetic figure, Robert Bork, a Daniel come to judgment, talking about first principles and shattering the prevailing dogmas about constitutional interpretation.

The dogmas of decades, especially dogmas that facilitate the professoriate’s preferred political outcomes, cannot be undone in the space of 20 years. Given that glacial pace, what Robert Bork accomplished is all the more remarkable. We now have a president who nominates potential Supreme Court justices who believe in interpreting rather than making the law. The debate over activism vs. textualism is going on in federal courts and in state appellate courts all over the country as well, including the Michigan Supreme Court.

We now have originalist scholars beyond counting, and a wealth of sound new scholarship on the framers, the Supreme Court and the philosophical underpinnings of the American Constitution, and we now have a public debate over the proper role of judges, much of it taking place in the popular press.

Before the Reagan administration, particularly the Judge Bork hearings, what news program ever focused on judicial philosophy? When did people outside the academy or the bar discuss it? But now, in forums ranging from online blogs to classrooms, there are discussions about what it means to be an activist judge or a textualist. It’s fodder for judicial campaign ads. The debate is now out in the public square, and much of the credit for that belongs to Judge Bork.

He continues to be the prophetic voice which warns us that our democracies, our social norms, and our freedoms are in danger from government by judicial fiat. He is the primary resurrector of American constitutional law.

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