I did it again. (Fair warning! The link goes to white power pamphlet National Review Online, the most intellectually dishonest rest stop on the Information Super Highway.) I visited the NRO for giggles to see how the perpetually loose screws were on the hinges, so to speak, following the SCOTUS decision on Friday.
“On October 23, 1987, the U.S. Senate rejected the Supreme Court nomination of Judge Robert Bork, by a vote of 58 to 42. I’m not saying merely that if Bork hadn’t been rejected, President Reagan wouldn’t have appointed Justice Anthony Kennedy, who wrote today’s opinion: I think that if Bork had been on the Court, that 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.
We’ve gone down this road before: what if you could go back in time and smother baby Adolph in his crib, or some other such rewrite of history that it satisfies your particular fetish. The thing is that even back in the Reagan Era, Bork was thought to be too conservative to be viable. Think about that for a moment. The man was as sane as he looked, which is something like an Old Testament Bookie taking odds on how long the dirty hippie would last on the cross.
History is of course fiendishly complicated, and this sort of counterfactual is impossible to prove. What if, instead of my hypothesis, the American people came to dislike Justice (or eventual Chief Justice!) Bork intensely, and as a result moved even faster in the direction of anti-originalist “living-Constitution” views? But I submit that, in my experience, even legal scholars who are in strong opposition to Bork’s views recognize that he would have been one of the most ferociously intelligent and effective justices ever to serve on the Court. He would, in my opinion, have been a game-changer.
It would indeed be a game changer. Bork was an advocate of an amendment to the United States Constitution which would allow Congressional supermajorities to override Supreme Court decisions. Imagine the time traveling that the Confederacy would do if that were the case?