Robert Bork
Based on Wikipedia: Robert Bork
On a Saturday night in October 1973, Robert Bork became the most controversial man in America by doing his job.
President Richard Nixon had ordered his Attorney General, Elliot Richardson, to fire the special prosecutor investigating Watergate. Richardson refused and resigned. Nixon then ordered the Deputy Attorney General, William Ruckelshaus, to do it. Ruckelshaus also refused and resigned. That left Robert Bork, the Solicitor General, as the highest-ranking official at the Justice Department.
Bork fired the prosecutor.
This sequence of events became known as the Saturday Night Massacre, and it would haunt Bork for the rest of his career. Fourteen years later, when President Ronald Reagan nominated him to the Supreme Court, his opponents would invoke that night as proof that Bork would do anything for power. His supporters would argue he was simply following a lawful order and preventing the Justice Department from collapsing into chaos.
Both sides had a point. And that tension—between principle and pragmatism, between legal reasoning and political reality—defined Robert Bork's entire life.
The Scholar Who Reshaped Antitrust Law
Before he became a political lightning rod, Bork was an academic, and a remarkably influential one. He spent nearly two decades as a professor at Yale Law School, where his students included a remarkable cast of future power players: Bill Clinton, Hillary Clinton, Jerry Brown, and John Bolton, among others.
But Bork's most lasting contribution to American law came from a 1978 book with the dry title The Antitrust Paradox. The central argument was deceptively simple: antitrust law—the body of rules designed to prevent monopolies and promote competition—had lost its way.
For decades, courts had broken up mergers and prosecuted companies based on the assumption that competition itself was the goal. More competitors meant a healthier market. Bork disagreed. He argued that the real purpose of antitrust law should be consumer welfare. If a merger made products cheaper or better for consumers, it should be allowed, even if it reduced the number of competitors. If keeping inefficient companies alive just to preserve competition meant higher prices, that was irrational.
This was not an abstract academic debate. It changed how the American government regulates business.
Before Bork, the government routinely blocked mergers between companies that together would control relatively small shares of their markets. After Bork's ideas gained traction in the courts and in the Reagan administration, the threshold for intervention rose dramatically. Companies could grow much larger before antitrust enforcers would step in.
Today, when critics argue that companies like Amazon, Google, or Facebook have become too powerful, they are often explicitly arguing against the Bork framework. The "consumer welfare standard" he championed remains the dominant approach in American antitrust law, though it faces growing challenges from those who believe it has allowed dangerous concentrations of economic power.
The Solicitor General
In 1973, Bork left Yale to become Solicitor General of the United States, a position sometimes called the "tenth justice" because of its influence on Supreme Court cases. The Solicitor General represents the federal government before the Supreme Court, deciding which cases to appeal and arguing them before the justices.
Bork was apparently quite good at it. Chief Justice Warren Burger called him the most effective counsel to appear before the Court during his entire tenure. This was no small compliment—Burger served as Chief Justice for seventeen years.
One of Bork's most significant cases was Milliken v. Bradley in 1974, which limited the power of federal courts to order school desegregation across district lines. The case involved Detroit, where the schools within the city were largely Black while the surrounding suburban schools were largely white. Civil rights advocates wanted the courts to order busing between Detroit and its suburbs to achieve integration. Bork argued against this on behalf of the state of Michigan, and the Supreme Court agreed in a five-to-four decision.
The ruling effectively meant that as long as suburban districts had not themselves engaged in intentional segregation, they could not be forced to participate in integration efforts with urban districts. This made it much harder to address the kind of residential segregation that had produced racially identifiable school systems in metropolitan areas across America. Critics saw the decision as gutting the promise of Brown v. Board of Education. Supporters argued it preserved local control over education.
The Saturday Night Massacre
Then came October 20, 1973.
The Watergate scandal was consuming the Nixon presidency. A special prosecutor named Archibald Cox had been appointed to investigate, and he had subpoenaed tape recordings of Nixon's Oval Office conversations. Nixon wanted those tapes kept secret. He ordered Cox fired.
What happened next became one of the most dramatic constitutional confrontations in American history.
Attorney General Richardson had promised the Senate during his confirmation that he would not fire Cox except for "extraordinary impropriety." He considered Nixon's order to violate that promise and resigned rather than carry it out. Deputy Attorney General Ruckelshaus agreed and also resigned.
Bork was next in line. He later claimed that both Richardson and Ruckelshaus urged him to stay and carry out the order, arguing that someone needed to prevent the Justice Department from completely falling apart. He also claimed Nixon's lawyers pressured him and that he had intended to resign immediately afterward.
Whatever his motivations, Bork fired Cox.
The public reaction was explosive. The White House received more than 450,000 telegrams in the following days, almost all of them critical. Congress immediately began drafting articles of impeachment. Within ten days, Nixon was forced to appoint a new special prosecutor and agree to hand over the tapes.
In his posthumously published memoirs, Bork revealed a remarkable detail: after he fired Cox, Nixon promised him the next seat on the Supreme Court. Bork claimed he did not take the offer seriously because Watergate had already fatally compromised Nixon's presidency. Indeed, Nixon resigned less than a year later, and it was his successor, Gerald Ford, who made the next Supreme Court appointment.
Ford considered nominating Bork to be director of the Central Intelligence Agency after he declined to reappoint William Colby. But Ford's advisors talked him out of it, citing Bork's unpopularity and lack of intelligence experience. The job went to George H.W. Bush instead.
The Appeals Court Judge
After serving out his term as Solicitor General under Ford, Bork returned to Yale. In 1982, President Reagan appointed him to the United States Court of Appeals for the District of Columbia Circuit—often called the second most important court in America because of its jurisdiction over federal regulatory agencies.
One of Bork's notable opinions from this period involved a sailor named James Dronenburg who had been discharged from the Navy for homosexual conduct. Dronenburg argued that his discharge violated his constitutional right to privacy. Bork, writing for the court with Antonin Scalia joining his opinion, rejected this argument. He used the case to critique the entire line of Supreme Court cases that had established a constitutional right to privacy.
This was characteristic Bork: he did not simply rule against Dronenburg on narrow grounds but used the case as a vehicle for a broader argument about constitutional interpretation. The right to privacy, Bork argued, was not grounded in the text of the Constitution but had been invented by activist judges. This would become one of the central issues in his Supreme Court confirmation fight.
The Nomination That Changed Everything
In 1986, Chief Justice Warren Burger retired. Reagan considered nominating Bork to replace him but ultimately chose to elevate Associate Justice William Rehnquist to Chief Justice and give Rehnquist's seat to Bork's colleague Antonin Scalia.
Some analysts later speculated that if Reagan had nominated Bork in 1986, he might have been confirmed. The Senate was controlled by Republicans at the time, and Scalia—who held similar views—was confirmed ninety-eight to zero. But others noted that the Republican majority was narrow, and Democrats might still have fought.
The question became moot in 1987 when Justice Lewis Powell announced his retirement. Powell had been a moderate conservative, often the deciding vote on contentious issues like abortion rights. His replacement would shift the balance of the Court. Reagan nominated Bork.
What followed was unlike anything in the history of Supreme Court confirmations.
Within an hour of the nomination, Senator Ted Kennedy took to the Senate floor and delivered what became one of the most famous—or infamous—speeches in congressional history:
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
Bork later responded that "there was not a line in that speech that was accurate." Many legal scholars, even some who opposed Bork's confirmation, agreed that Kennedy's rhetoric was wildly exaggerated. But as The Economist noted in Kennedy's obituary, "it worked."
The speech set the tone for a confirmation battle that lasted nearly four months. Civil rights groups, women's organizations, and liberal advocacy groups mobilized against Bork with unprecedented intensity. People For the American Way ran television advertisements narrated by Gregory Peck, the actor famous for playing Atticus Finch in To Kill a Mockingbird, attacking Bork as an extremist.
The Reagan White House was caught flat-footed. The accusations in Kennedy's speech went unanswered for two and a half months. By the time the administration mounted a serious defense, public opinion had turned against Bork.
The Paradox of Bork's Record
Here is where the story becomes genuinely complicated. Bork's opponents portrayed him as a right-wing ideologue who would roll back civil rights. But an academic analysis published in 1988 examined the briefs Bork filed as Solicitor General and found something surprising: he took liberal positions as often as Thurgood Marshall—the legendary civil rights lawyer who became the first Black Supreme Court justice—had during his time as Solicitor General under Lyndon Johnson.
In civil rights cases specifically, Bork filed briefs supporting the civil rights plaintiffs seventy-five percent of the time.
How do we reconcile this with the portrait painted by his opponents?
Part of the answer is that the Solicitor General's job is to represent the government's position, not necessarily his own views. Part of it is that Bork's academic writings and speeches were more provocative than his actual legal work. He had criticized the Civil Rights Act of 1964 as a young professor, though he later said he had been wrong. He had questioned whether the Constitution protected a right to privacy. He had supported the idea that Southern states could impose poll taxes.
His opponents focused on what he had said. His supporters focused on what he had done.
The Vote
The Senate rejected Bork's nomination fifty-eight to forty-two. It was the largest margin of defeat for any Supreme Court nominee in history.
Six Republicans voted against him. The opposition was bipartisan in form, but the campaign against him had been led by Democrats and liberal interest groups.
The seat eventually went to Anthony Kennedy, a more moderate conservative who would become a crucial swing vote on issues like abortion, gay rights, and affirmative action for the next three decades. Those who defeated Bork believed they had saved the Court from a dangerous ideologue. Those who supported him believed an eminently qualified jurist had been destroyed by a campaign of distortion.
The Verb
Bork's nomination fight was so bruising that it entered the language. "To bork" became a verb meaning to systematically attack a political nominee through an organized campaign. The Oxford English Dictionary added it in 2002.
This was Bork's strange legacy: he influenced American law in ways that would persist for decades, from antitrust doctrine to constitutional interpretation, but he is remembered primarily for losing.
The Privacy Footnote
One unexpected consequence of the Bork confirmation fight involved, of all things, video rental records. During the debate over his nomination, someone leaked Bork's rental history from his local video store to the press. The list was mundane—A Day at the Races, Ruthless People, The Man Who Knew Too Much—but the fact that it could be leaked at all alarmed many Americans.
A reporter named Michael Dolan published the list in the Washington City Paper, justifying it with a certain irony: Bork himself had argued that Americans had only such privacy rights as were explicitly granted by law, not some broader constitutional right to privacy. Well, there was no law protecting video rental records.
Congress soon passed one. The Video Privacy Protection Act of 1988 made it illegal to disclose video rental records without customer consent. It remains in force today, a small monument to the Bork confirmation fight. Privacy advocates sometimes call it "the Bork law."
After the Fall
Bork resigned from the Court of Appeals in 1988 and spent his remaining years as an author, professor, and conservative intellectual. He taught at George Mason University's law school and became a fellow at the American Enterprise Institute and the Hudson Institute.
His 1996 book Slouching Towards Gomorrah was a work of cultural criticism lamenting what he saw as America's moral decline. The title came from a line in a William Butler Yeats poem about the collapse of civilization. It was a bestseller.
He advised Mitt Romney during the 2012 presidential campaign. He remained a hero to conservatives who believed he had been martyred for his principles and a cautionary tale to liberals about what might have been.
Robert Bork died on December 19, 2012, in Arlington, Virginia. He was eighty-five years old.
The Enduring Questions
Was Robert Bork right about antitrust law? The consumer welfare standard he championed dominated American competition policy for decades. But today, a new generation of critics argues that it failed to prevent the rise of monopolies that harm democracy even when they do not raise prices. The debate Bork helped shape continues.
Was he right about constitutional interpretation? His argument that judges should adhere to the original understanding of the Constitution—a philosophy called originalism—has become mainstream conservative legal thought. The Supreme Court now has a majority of justices who embrace some version of this approach.
Was the campaign against his nomination fair? That depends on what you believe a confirmation fight should be. If it should focus only on a nominee's qualifications and judicial temperament, then the attacks on Bork were often unfair and exaggerated. If it is legitimate to consider a nominee's judicial philosophy and its likely consequences, then Bork's opponents were playing by appropriate rules.
What is clear is that the Bork confirmation fight changed how Americans think about the Supreme Court. Before Bork, confirmation hearings were usually brief and uncontentious. After Bork, they became political battlegrounds. Every subsequent fight—over Clarence Thomas, over Brett Kavanaugh, over any controversial nominee—has occurred in the shadow of what happened in 1987.
Robert Bork never became a Supreme Court justice. But in his failure, he may have shaped the Court more than many justices who actually served on it.