A brilliant American jurist – who would be a former Supreme Court justice but for an ugly political circus in the Senate – has died. Judge Robert H. Bork, a friend to many at NATIONAL REVIEW and a contributor, is remembered by friends, colleagues, and students.
A legal giant passed today. Judge Robert H. Bork was one of the central figures responsible for the rise of originalist constitutional interpretation. In his academic work and legal books for broader audiences, most notably The Tempting of America, he explained how tethering constitutional interpretation to constitutional text, as understood at the time of its adoption, enhanced self-government, preserved fundamental constitutional values, and limited judicial overreach. His work helped define the terms of the debate, and helped inspire legions of younger academics to pursue originalist scholarship. Any legal scholar would be happy leaving an intellectual legacy of this magnitude. Lest we forget, then-professor Bork was also a giant in the field of antitrust law. His seminal book, The Antitrust Paradox, explained how seemingly “anti-competitive” conduct could, in fact, enhance consumer welfare and urged courts to weigh such consumer benefits against the threats posed by monopolies and cartels. This book revolutionized the study of antitrust law and has had a lasting influence on how federal courts evaluate antitrust claims. No doubt many obituaries will obsess over his role in the Nixon administration’s “Saturday night massacre” and his failed Supreme Court nomination, but his intellectual contributions will remain long after those political battles are forgotten.
– Jonathan H. Adler is Johan Verheij Memorial Professor of Law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.
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