My father has been dead for nearly fourteen years, but his critics are still fighting the Robert Bork they invented.
The latest effort at shadowboxing a ghost comes from Alex Wagner in The Atlantic, in an excerpt from her new book about the conservative legal movement. Wagner returns to the first Federalist Society conference at Yale in 1982, where my father spoke alongside Antonin Scalia, whom casts as the architect of a plan to capture the judiciary, curtail constitutional rights, and use originalism to restore conservative values.
The actual text of Bork’s speech, “Federalism and Gentrification,” survives in the Ronald Reagan Presidential Library. This isn’t a matter of reconstructing what was said from memory or hostile summary. Reading it makes Wagner’s version unsustainable.
She writes that Bork told the students academia and the press had become overwhelmingly liberal, that the Supreme Court was inventing rights, and that he then laid out a conservative doctrine of originalism grounded in a “strict” or “textualist” reading of the Constitution and the intentions of the Founding Fathers. The first two points are certainly in the speech. The rest is Wagner’s reconstruction. Bork never uses the word “originalism.” He doesn’t call for a strict interpretation, doesn’t call himself a textualist, and doesn’t invoke the Founding Fathers. Those are Wagner’s words, not his.
What he actually addressed was an older and harder question: Who governs in a constitutional democracy? His complaint was that the Supreme Court had started creating constitutional rights that couldn’t be reached through ordinary interpretation—not that judges were always reaching liberal outcomes, but that once judges were untethered from the text, they were free to select values of their own. That concern predates the Federalist Society by well more than a decade. In his 1971 article “Neutral Principles and Some First Amendment Problems,” Bork had already asked the question that would define his career: If judges can easily strike down democratic choices, what separates constitutional law from laws passed by Congress?
Wagner turns this argument almost exactly upside down, framing Bork’s answer to liberal judicial activism as a call for conservative judicial activism. It was the opposite—an argument for judicial restraint. At Yale, Bork said legislatures shouldn’t be blocked from governing “unless the Constitution itself, fairly construed, makes the choice,” and warned against a transfer of authority “from democratic to judicial rule.”
And his proposed method for this supposed judicial takeover?
“It is an intellectual debate,” he said. “Perhaps it can be won.”
If it were won, Bork hoped the Court would settle into a “rather more modest role.”
Some coup.
Wagner’s most telling line may be her claim that “whether Bork truly believed in the conspiracies he outlined or whether he was merely exaggerating is unclear.”
Bork drew on well-grounded facts to characterize a media and legal environment that was already well on its way to being an ideological monolith.
When Bork said leading journalists were overwhelmingly liberal, he cited a survey in Public Opinion that found more than 80 percent of journalists who voted had backed the Democratic presidential candidate. This is a statistic that Wagner herself repeats later in the piece. Does an empirical claim becomes a conspiracy theory once the evidence is politically inconvenient?
Bork made a similar argument about elite law schools, and later empirical research hasn’t exactly made the observation look paranoid. A major study of the legal academy found only 15 percent of law professors are conservative, compared with 35 percent of lawyers generally.
That does not, of course, prove every causal claim Bork made about courts or culture. But it does make Wagner’s “conspiracy” characterization hard to defend.
More consequential, I think, is how Wagner describes originalism itself—telling readers that under this approach, constitutional rights existed only as the Founding Fathers had specifically imagined them. That makes originalism sound like constitutional taxidermy, and it wasn’t my father’s position at all.
As a judge, Bork put the point rather differently. He said: “It is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” Then came a sentence that is difficult to square with Wagner’s description of originalism: “The world changes in which unchanging values find their application.”
Bork made the point concrete. The Framers knew nothing of electronic surveillance, he observed, but the Fourth Amendment’s principle nevertheless applies to it. They knew nothing of radio and television, but the First Amendment applies to them. The constitutional principles endured; their application wasn’t frozen at the moment of ratification.
His treatment of Brown v. Board of Education shows the same thinking. Bork recognized the historical difficulty: the original understanding of the Fourteenth Amendment did not provide a simple answer about segregated public schools. Yet he defended Brown because the constitutional principle was equality, and constitutional principles must be applied to circumstances beyond the specific expectations of those who enacted them.
In short, the question was never whether the Framers anticipated every future controversy. It was what principle the Constitution had actually enacted.
That distinction matters again when Wagner turns to abortion, which she frames as part of a conservative campaign to curtail rights. But at the 1982 conference, Bork didn’t argue the Court should prohibit abortion—he argued it should stop deciding the question for everyone.
“There is simply no national moral consensus about abortion,” he said. In his view, Roe had taken a genuine political and moral disagreement and turned it into a single constitutional command binding all fifty states. “It is an issue that really ought to be back in the states,” he concluded.
Forty years later the Supreme Court reached essentially that conclusion in Dobbs v. Jackson Women’s Health Organization, and here Wagner has a real point: Bork’s argument eventually won.
But notice what winning meant. The Court didn’t hold that the Constitution prohibits abortion. It held that the Constitution doesn’t confer a right to abortion and returned authority over the issue to “the people and their elected representatives.” Bork’s great judicial “victory,” in other words, consisted of the Court returning power over the abortion question to state voters and state legislators. A coup would have outlawed abortion at the national level. The doctrine Bork advocated, which eventually succeeded, leaves the abortion policies of Massachusetts, New York, California and other blue states intact.
None of this requires believing my father was always right. Serious scholars disagreed with him throughout his career, sometimes forcefully, and there remain genuinely hard questions about originalism, judicial review, federalism, unenumerated rights, and how a democracy protects minorities against its own majorities. Bork spent much of his professional life arguing about exactly those questions.
But argument has to start with describing the other side honestly, and what Wagner offers instead is a morality play: conservatives become “hard-liners,” the Federalist Society mounts a “raid” on the courts, Bork’s empirical claims become “conspiracies,” judicial restraint becomes a scheme for judicial domination, and returning disputed questions to elected government becomes “curtailing rights.”
Even the founding of the Federalist Society looks less sinister with the ominous music turned off. Three law students at elite universities thought conservative legal ideas weren’t getting a serious hearing, so they started an organization where those ideas could be debated. Other students heard about it and wanted chapters of their own, and it grew from there.
You can call that the beginning of a plot, or you can call it freedom of association. The Federalist Society became influential because the ideas developed in and around it became influential. And Robert Bork didn’t believe courts should become instruments of conservative politics. He believed they had already become instruments of politics, and he wanted that to stop.
Nearly half a century later, some of his critics still can’t tell the difference.