Thirty-five years ago, Ted Kennedy rushed to the Senate floor to deliver one of the most famous takedowns in American history.
His target was Judge Robert Bork, the conservative legal scholar who had just been nominated by Ronald Regan to serve on the Supreme Court.
Bork was the father of “originalism,” the theory built to combat the liberal courts of the ‘50s, ‘60s and ‘70s, which had found justification in the Constitution to limit states’ authority on a variety of issues including racial segregation, police conduct and abortion.
On July 1, 1987, Kennedy said: “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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
The rest, as they say, is history. Bork went on to a contentious hearing before the Senate Judiciary Committee (chaired by then-Sen. Joe Biden) and his nomination was defeated in a bipartisan vote by the full Senate. When it’s remembered at all, Bork’s story is the original sin, the moment when the Supreme Court confirmation process became an empty exercise of raw political power. To “bork” became a verb for ruthlessly using a judicial nominee’s record against them, and anyone who hoped to someday join the court learned to act like Don Corleone’s children and “Never tell anyone outside the family what you are thinking.”
But history keeps working after the story ends. Even though Bork did not make it to the court, there are six originalists there now, busy dismantling the protections that the earlier courts upheld. Kennedy and Bork are long gone, but we live in Robert Bork’s America.
We have already seen a pair of decisions that gut the Voting Rights Act – the crowning legislative achievement of the Civil Rights Movement.
Over the next few weeks we are waiting for a ruling that could overturn Roe v Wade, giving the decision of when to have a child to state legislators instead of individual women. We may also see the court force Maine and other states to pay tuition for religious schools that don’t teach evolution or tolerate lesbian, gay or transgender teachers or students.
Bork’s biggest influence, though, comes in his views on federal power over corporations. He didn’t think it should have much.
Through most of the 20th century, presidents, Congress and the courts thought it was their job to keep companies from getting too big and killing competition. A classic example is the 1962 Brown Shoe Co. case, in which a unanimous court blocked a merger that would have given one company 2 percent of the nation’s shoe business. Chief Justice Earl Warren wrote that the law is needed to “promote competition through the protection of viable, small, locally owned business,” even if that resulted in higher prices.
At the University of Chicago, Bork argued that price was the only thing that should matter and a corporation could not get “too big.” Unless a monopoly was artificially inflating prices, he wrote, the government should mind its own business.
This was a perfect fit for the Reagan administration’s attempt to undo the New Deal’s promise of shared prosperity by claiming that “big government” was not protecting us but holding us back. Reagan’s folksy delivery of Bork’s ideas have given us 40 years of wealth concentration, corporate mergers, offshored factories, homelessness and stagnant wages.
Since the conservative takeover of the court, the rights most prominently protected are not individual rights, but corporate rights. Corporate “persons” have unlimited ability to participate in elections, and are sometimes even allowed to claim religious exemptions from general laws.
In most histories of the Bork nomination, Kennedy’s floor speech – delivered less than an hour after the nomination was announced – is seen as a cheap shot. Bork’s complicated views were reduced to a few slogans and he couldn’t overcome the bad publicity.
But Bork’s ideas were a lot more resilient than the judge, and they now animate the Supreme Court as it becomes the most powerful branch of government.
What Kennedy said in 1987 about Robert Bork’s America was no cheap shot. It was prophetic.
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