Thirty-one years ago, in response to Ronald Reagan’s nomination of Judge Bork to the Supreme Court, Ted Kennedy took to the Senate floor to prophesy the horrors that would ensue in “Robert Bork’s America” were the nominee confirmed. Bork’s qualifications were beyond question, but his mortal sin proved to be his candid support for the notion that a constitutional provision’s meaning was fixed at the time of its adoption and that Supreme Court decisions to the contrary were not interpretations but usurpations. After Bork’s nomination was rejected, then-Judge Anthony Kennedy (no relation to the senator) disavowed that heresy and was confirmed to the open seat.
With Justice Kennedy’s retirement, the time is ripe to compare Anthony Kennedy’s America, in which we live, with Robert Bork’s America, to the extent it can be justly imagined (not as it was slanderously caricatured by Sen. Kennedy). One consequence of Bork’s confirmation would have been the court’s repudiation of Roe v. Wade. (Justice Kennedy cast the decisive vote to preserve Roe in 1992.) Reversal of Roe, it should be remembered, would not have made abortion illegal. Rather, it would have returned the issue to state legislatures. Some states would have revived strict legal limits; others would have ratified the court-imposed regime of choice. The court itself would have receded from the controversy.
{mosads}The debate about abortion was part of a broader debate about the Supreme Court’s “privacy” decisions, all of which Bork renounced. As a single member on a nine-justice court, his confirmation would not have rolled back these decisions. But he would have prevented their extension in those rulings that did so via Justice Kennedy’s decisive support. The most prominent examples are the court’s cases extending constitutional protections to gays and lesbians, none of which likely would have happened had the court included a Justice Bork.
But again, this would not have meant the defeat of efforts to recognize the dignity of all persons or even to obtain marriage equality. As with abortion, the consequence would have been the court’s withdrawal from the field and the transfer of the debate to the legislative arena. And during the first 15 years of this century, progress towards LGBTQ equality, including same-sex marriage, proceeded at a remarkable pace. But that process was cut short when three years ago the court imposed same-sex marriage on the nation by a 5-4 vote, in an opinion that represents a pillar of Justice Kennedy’s legacy.
Not all differences between Bork and Kennedy would have pleased conservatives. The Supreme Court’s ruling handing the 2000 presidential election to George W. Bush cannot be squared with the original understanding of the Constitution, and Bork was was highly critical of the court’s reasoning. Had the court not intervened when it did, the House of Representatives ultimately might have selected the president (as the Constitution contemplates and as the Founding Fathers expected to become the routine after Washington retired).
Once again, resorting to what the Constitution actually required would have diminished the role of the justices and relied instead on the people’s elected representatives.
This pattern is strengthened by a last example. One contemporary controversy that rivals abortion and same-sex marriage for cultural divisiveness is the interminable debate over gun control. In 2008, the Supreme Court inserted itself into that debate with a 5-4 ruling, with Justice Kennedy supplying the decisive vote for an “individual rights” reading of the Second Amendment. Judge Bork’s writings strongly suggest that his presence on the court would have produced a ruling far more deferential to legislative efforts to address gun violence.
In all four of our case studies, and undoubtedly in countless others, a court with a Justice Bork would have ruled in ways that would have reduced the significance of the Supreme Court and enhanced the role of legislatures. Like Kennedy, Bork would have sometimes pleased conservatives and at other times alienated them. But he would have shrunk the court’s political footprint, whereas Kennedy enlarged it.
By 2016, this meant that the selection of Justice Scalia’s successor would set the nation’s course on numerous issues for decades. Little wonder, then, that the ordinary processes for confirming a replacement broke down under the pressure. Instead, the matter became quite likely a decisive issue in the 2016 presidential election, which swept into the Oval Office the most manifestly unfit person ever to occupy it. Many were puzzled by the support of millions of evangelical Christians who might have been expected to recoil from President Trump’s unparalleled indecency. But those voters knew that, for issues they care about, control of the court matters. So Anthony Kennedy’s America is Donald Trump’s America, and it is fitting that the latter will name the former’s successor.
This survey concludes with an appeal to those involved in vetting candidates to replace Justice Kennedy, to those deciding whether to confirm the nominee, and ultimately to the individual who will manage to pass through the eye of this needle. All named will be tempted to replace Justice Kennedy with an individual who will vote the preferences of the Republican Party, letting result triumph over interpretative method and constitutional principle.
Ironically, it was Judge Bork’s refusal to play this game that damned his nomination and gave us Anthony Kennedy’s America. The foregoing reflections about Kennedy’s tenure on the court, and the country the court was meant to serve (not rule), suggest that the temptation ought to be resisted. Rather, it is time for a return to the principles that Judge Bork championed. We need, now more than ever, the sort of justice that Robert Bork promised to be, a justice who would enforce the Constitution and laws as they are, and not as he or she might wish them to be. The result would not be Robert Bork’s America, Anthony Kennedy’s America, or [insert nominee’s name]’s America. It would be the America our Constitution envisions.
Christopher Bryant is the Rufus King Professor of Constitutional Law at the University of Cincinnati. A former assistant legal counsel to the U.S. Senate (1997-199), he is a co-author of “Powers Reserved for the People and the States: A History of Ninth and Tenth Amendments” (Greenwood Press 2006).