Archive for the ‘Legal people’ Category

Robert Bork the Catholic

January 3, 2013

We recently lost Robert Bork, a relatively clever jurist better known for his bloody and ultimately unsuccessful Supreme Court nomination. Accurately or not, his was a nomination almost immediately attacked by a coalition of liberal interests from civil libertarians and civil rights advocates to reproductive rights advocates and the ACLU to Ted Kennedy, ultimately failing by a solid majority in the Senate. This puts Bork in the whopping 8% of Supreme Court nominees to have a confirmation rejected after a full vote by the Senate, though this was far from the end of his long and successful career.

Something you may not know, something more apropos to a skeptical blog than his CV, is that Bork is a convert to Catholicism. While a fellow of the American Enterprise Institute, his second wife (his first wife died in 1980) introduced him to the Church, one of whose agents told him that his views were closely aligned with those of the Catholic Church. He formally converted in 2003 with some hand-waving references to intelligent design and a close alignment with its social policies. While he waited until his 70s to convert (advantageous, Bork said, because by that age one was too old to commit any more interesting sins anyway so a single absolution should suffice), there are certainly hints of his affinity for Catholic thinking in his judicial career, and not just in his social policy. While Bork spent much of his post-confirmation failure claiming that he had been slandered and smeared by the American left, the fact that Bork saw such similarity between himself and an authoritarian, anti-woman, anti-gay, fiercely plutocratic organization speaks volumes as to the sincerity of those objections.

Bork’s views on homosexuality were mainstream for 20th jurisprudence, which is to say, rather unfriendly to the gay crowd. The parallel to Catholic theology is clear, but again, this criticism of Bork isn’t entirely fair because there were no significant pro-gay judges in the 20th century who had any meaningful impact on the law. More telling is his affinity for the jurisprudential framework called originalism.” Originalism is the view that the only appropriate reading of the Constitution is to pretend that the authors of the Constitution all thought the same thing about each of its provisions, then pretend that you know what they were thinking using your modern interpretive lens (Scalia, for example, has very strong ideas about what the Founding Fathers thought about weapons that hadn’t yet been invented in the 18th century), then decide the laws of a 21st-century nation according to the products of those various imaginings. Originalism is a deeply religious concept; the Catholic Church, too, prioritizes the antiquity of a document as a marker of its authority over its actual persuasiveness. Originalism holds up the actual text and structure of a founding document and confers authority upon it not in virtue of its actual merits as a framework for a well-ordered society, or for the outcomes that it yields in terms of equity or justice, but simply because of who wrote it and how old it is.

I describe originalism sarcastically because it makes very little sense to me. I think that it has problems of both its outcomes for constitutional interpretation and in its internal coherence. But Bork was one of its luminaries (strange that an ideology so geared towards the Constitution’s origins has only seen its greatest popularity centuries after those origins), and he religiously advocated that religion-like doctrine.

Originalism is a not unpopular legal doctrine and so it is no particular black mark on Bork’s record that he, along with Antonin Scalia, virtually founded the modern originalist movement. Less flattering to his legacy as a jurist, though perhaps more important to his legacy as a Catholic, is the book he wrote in the mid-90s while at the Enterprise Institute, Slouching Towards Gomorrah. I read the book in preparation for writing this post, and I must say, it is a real disaster as far as what one should expect from a decently able-minded jurist. Where Bork’s other written works, such as his treatise on antitrust law, are polished and more thoroughly-cited than a law review article, Slouching is more like what I would expect from a merely average Christian whiner targeting the late-70s, white, Christian, “get-off-my-lawn!” crowd. Without going into much detail beyond “moral terpitude,” Bork spends the book attacking everything even vaguely associated with political leftism from reproductive liberty to pornography to “bra-burning” (he is unperturbed by the fact that bra-burning was never actually a thing), and in the good Catholic tradition, he roundly blames virtually everything not advocated on the 1962 GOP party platform for the “decline” of America (his book was written during the historical peak of American prosperity; in fact, the “decline” that he describes as beginning in the 1960s was in fact interrupted by only a single lengthy economic downturn: the Reagan era).

Grouchy social conservatism and originalism are defining features of the Catholic Church, and they are the two things that Bork may be most remembered for. Which is too bad, because Bork was not by any stretch an unlettered fellow, and he would probably have been a significant presence on the Supreme Court. He hopefully would have learned a thing or two while there. But now he is lost to us, and unfortunately he is commended to history with a lengthy screed against the damn hippies and a rare but highly cinematic failure before the Supreme Court to his name. In remembering him, I encourage you to pursue his more important works, especially his inquiry into antitrust law, since though today he may be more widely-known merely as a political ninny, the first to be “Borked,” he was wiser than that as a scholar, and more sinister than that as a man.