Jack Balkin offers a counterfactual history of the Supreme Court if Bork was nominated and confirmed in 1986 to replace Justice Rehnquist, and Scalia was nominated and confirmed in 1987 to replace Powell. Balkin speculates that without the brutal Borking that was still fresh, in 1990 Bush 41, would not have tried to play it safe with Souter, and instead nominated “Kenn Starr, or Edith Jones, or even Clarence Thomas a year early.” What would a Court with a “five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones” have accomplished?
What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation. As it is, the Rehnquist and Roberts Courts have moved doctrine considerably to the right in a number of areas. One can only imagine what a Court staffed with Bork, Scalia and Thomas might have done.
I partly agree with Jack.
Jack is most certainly right that a court stocked with Bork and Jones, along with Rehnquist, Scalia, and Thomas, would not have hesitated to reverse Roe. Also, Bowers would probably still be good law. And Guantanamo would still be open for business–oh wait, never mind.
Indeed, Bork was inimical to individual liberty and he likely would have voted to roll back many judicially created rights, and halted the creation of others. Inkblots and all.
But that is only half of the judicial picture. Bork was a very conservative Burkean (Borkean?) jurist who believed in deferring to the democratic process at all costs.
How would Bork have fared with striking down laws? The Federalism Revolution of the Rehnquist Court was premised on the Court striking down democratically-enacted pieces of legislation based on heretofore unknown inkblots in the Constitution. Would Bork have been as eager as Justice Kennedy to strike down the Gun Free School Zone Act or VAWA? What about adopting an atextual reading of the 11th Amendment in Seminole Tribe or Alden v. Maine? Not even Scalia or Kenned were willing to take a hit on the commerce clause in Raich.
What about some of the other “conservative activist cases?”
Bork had a very cabined and cramped view of free speech? Could you see Justice Bork striking down BCRA in Citizens United?
Would Bork have swallowed his pride, like Scalia, by incorporating the Second Amendment through substantive due process in McDonald?
Would Bork have adopted the tenuous reasoning in Bush v. Gore, or would he have put politics aside?
And what about Obamacare? Would Bork’s vote have been much different from that of John Roberts? And what if Bush 43 appointed Judge Wilkinson (a close match with Bork) instead of Alito? Would the 5th vote to strike down Obamacare have existed?
Perhaps Bork’s strong conservativism would have pushed Justice O’Connor further to the left, as Scalia often did, and weakened her support for federalism altogether. And I can imagine personality conflits with Justice Jones emerging–though, the thought of her telling Justice Breyer to shut up (especially during one of his winding hypotheticals) would be very entertaining.
Of course, Balkin’s hypothesis assumes that even if Ted Kennedy didn’t Bork Bork in 1987, he wouldn’t have Borked Edith Jones or Clarence Thomas in 1990 when Bill Freakin’ Brennan retired! What, with three years of four years of Bork on the bench at that time, I doubt the Judiciary Committee, chaired by Joe Biden, would have soft-peddled the nomination. Look at what happened with the Thomas nomination in 1991.
More from Judge McConnell here.
Counterfactuals are always fun.