Remembering Bork

He was my teacher 30 years ago. I’ve spent my career proving him wrong.

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Robert Bork in 2005

Photo by Alex Wong/Getty Images.

The last time I spoke to Robert Bork, who died Wednesday, was 30 years ago this week. In mid-December 1982, I was a second-year law student at Yale finishing up a seminar that Bork taught, a seminar organized around ambitious works by leading constitutional scholars—Alex Bickel, John Hart Ely, Charles Black, and others. I did not entirely love the seminar, or Bork, but it and he changed my life. Today I find myself, weirdly, standing in Bork’s shoes. At 54, I am now almost exactly the same age as Bork was then; and I regularly teach a seminar at Yale inspired by the one I took from him, with a reading list that includes several of the books I first read under his supervision. In fact, my seminar usually meets in Bork’s old classroom. (And did I mention that I too have a beard that some would call scruffy?)

So why didn’t I ever converse with Bork after the class ended? And how did a seminar and a professor that I didn’t entirely love end up having such a profound effect on me?

I never spoke to Bork after 1982 because, frankly, he could be insensitive and off putting. In the classroom, he was quick to dismiss imaginative ideas floated by students. In his defense, it must be said that many of these student bubbles deserved to be popped. A law professor’s job is to train students to think rigorously. Bullshit does not win cases. So even as I disliked Bork’s demeanor at the time, I have since come to admire his honesty. Here was a man who cared enough about ideas to defend his own, and to hit yours head-on if he thought they deserved it. Most important of all, he did not downgrade students who came back at him with tight counterarguments. My term paper for this class was an all-out 30-page attack on Bork’s pet ideas, yet he gave me a top grade—without which I might never have been hired by Yale to teach constitutional law.

Bork’s truculence in the classroom made me want to fight back—but to do so, I had to work hard and drill down. In the process, I came to love constitutional law, a subject that had not electrified me as a first-year student in an intro course taught by a gentler and less edgy professor.

The combativeness that Bork brought to the classroom later came into public view during his 1987 confirmation hearings. His arrogance did not serve him well in these hearings—but truth be told, arrogance runs rampant in the higher reaches of the legal academy. (And here I most emphatically do not exempt myself.)

My biggest criticism of Bork thus concerns not his attitude but his altitude: His work in constitutional law never came close to the heights reached by his most gifted contemporaries. John Hart Ely wrote a soaring book on constitutional law—a book that I first read in Bork’s class and that I continue to reread and to teach and to learn from every time I re-engage it. Ditto for some of the great works of other modern constitutional law giants, including Charles Black, Philip Bobbitt, Bruce Ackerman, and Laurence Tribe. But as of 1982, Bork’s most significant writing in constitutional law was a single middling article on free expression, an article whose best ideas had already been elaborated by other, better constitutional scholars. In his later years, Bork did write several pop books on various issues related to constitutional law, but none of these breezy volumes makes a substantial and enduring contribution to serious scholarship.

By contrast, Bork powerfully contributed to antitrust scholarship with influential articles that culminated in an enormously important 1978 book, The Antitrust Paradox. Thus, a fair assessment of Bork’s career would properly describe him as a constitutional writer and a towering scholar; but he should not be thought of as a towering constitutional scholar.

He did have one big constitutional idea, namely, that original intent should play an important role in constitutional decision-making. Though Bork was hardly the first or the best to put forth this theory, he used his notoriety to popularize it. Many scholars and judges in the late 1960s and throughout the 1970s had begun to talk and act as if the original purposes of the Constitution’s founders and amenders were almost irrelevant to serious constitutional analysis in the modern world. Bork thought otherwise, and loudly proclaimed that scholars and judges must pay heed to original understandings.

But Bork was an awkward mouthpiece for this view because he himself knew very little about the Constitution’s history. And his extreme political conservativism compounded the problem because much of the history of the document’s enactment and amendment is a history of those who were the liberal reformers of their day—nationalist anti-aristocrats at the Founding, egalitarian crusaders for racial justice in the 1860s, suffragists and civil-rights activists in the 20th century.

Bork failed to see the basic contradiction because he was, to repeat, not an accomplished historian or even a sophisticated consumer of serious historical work. But his clarion call for renewed attention to constitutional text, history, and structure—alongside similar calls from friends in the political and academic worlds, such as Reagan Attorney General Ed Meese and law professor Steven Calabresi—was not without effect. Today, all serious constitutional scholars and most justices are far, far more attentive to originalist arguments than before Bork took the stage. Thanks in part to Bork, we are all textualists of sorts; we are originalists in part.

And by “we,” I of course include myself. When I entered Bork’s class in 1982, I was inclined to undervalue originalist arguments; I left with much greater respect for the fidelity Bork preached to text, history, and structure. Over the ensuing 30 years, I have devoted my career to proving, clause by clause, historical fact by historical fact, that faithful adherence to Bork’s approved methods does not invariably lead to Bork’s politically conservative conclusions. In fact, I’ve tried to show how many of the methods Bork claimed to embrace often support results precisely contrary to the ones Bork reached.

In short, Professor Robert Bork got under my skin and into my head so much that I have spent the last 30 years taking seriously the issues he first introduced me to. Though I did not entirely love him, I did learn from him. Indeed, I can now see that he profoundly changed my life.