THE BLOG
12/21/2012 04:13 pm ET Updated Feb 20, 2013

Imagining Supreme Court Justice Robert Bork

"Supreme Court Justice Robert Bork Dies"

What if that were the headline in newspapers this week? What if Robert Bork's 1987 nomination to our highest court had not been rejected by the biggest bipartisan majority in history? If Bork had died after spending the last 25 years on the Supreme Court, the stories about his death would reflect a different legal reality than the one we know today. Considering the impact that a Justice Bork would have had should remind us of the importance of truth-telling and the power of a well-organized progressive coalition.

The far right has been all too successful at making "Borking" into a synonym for some kind of unfair smear, and their efforts since his passing are no exception. But this rewriting of history is false, and it remains important to set the record straight. Bork's confirmation hearings focused on and exposed the threat posed by his extreme views about the law and the Constitution. As legal analyst Jeffrey Toobin has recently written, "Bork was 'borked' simply by being confronted with his own views -- which would have undone many of the great constitutional landmarks in recent American history."

If Bork had been writing Supreme Court decisions over the last quarter century, rather than angry books and bitter speeches, women's privacy, health, and personal liberty would be dramatically restricted. Bork did not believe there was a constitutional right to privacy. Roe v. Wade would have been overturned long ago, and laws criminalizing abortions would have gone into effect in many states. As of December 1, 2012, according to Alan Guttmacher Institute, four states have laws that automatically ban abortion if Roe were to be overturned; 13 retain their unenforced, pre-Roe abortion bans that would presumably be enforced if Roe were overturned; and seven have laws expressing the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.

And it's not just about abortion: Bork was intensely hostile to the notion of legal equality for womenunder the Constitution and argued that heightened scrutiny under the Equal Protection Clause should apply only to race and ethnicity.

LGBT Americans would have an ardent foe of equality on the Supreme Court rather than a staunch defender. Anti-sodomy laws might still be in force, meaning that gay people would be de facto criminals in many states. Anthony Kennedy, who was nominated to Court after Bork's rejection, wrote the majority in two hugely important cases addressing legal equality for gay Americans: Romer v. Evans and Lawrence v. Texas. In both cases, the decisions were decided by a six to three majority; it's hard to know what would have happened if Kennedy's energetic advocacy for individual liberty were replaced with Bork's deep hostility toward LGBT people and their rights. We certainly would not be wondering how Bork would vote on marriage equality: he once said that if marriage equality became a reality, "I think we'll become much more accommodating to man-boy associations, polygamists and so forth."

Voting rights, which are threatened by the current conservative majority even without Bork, would already have been undermined - he opposed the very principle of one person, one vote, a foundation of civil rights law. Remarkably, Bork argued that poll taxes were constitutional -- but the 1964 Civil Rights Act was not. He would have attacked affirmative action programs designed to provide wider educational opportunity; he said the civil rights law banning racial discrimination in public accommodations was based on "a principal of unsurpassed ugliness."

Jamie Raskin, a Maryland state senator, law professor and senior fellow at People For the American Way, noted in a report earlier this year that Bork's record as a judge on the federal appeals court "nearly always favored government when it was challenged by public interest groups,workers or citizens but favored business corporations whenever they challenged the government." And during his time at Yale Law School, Bork helped to turn anti-trust law on its head, arguing that laws intended to protect consumers could, in fact, be used to protect the corporations themselves. So as bad as the current corporate-minded court is, with Bork we could very well have gotten there much sooner.

Bork would also have used his power as a Supreme Court justice to undermine First Amendment freedoms and promote censorship in arts and media. He did not believe the First Amendment applied to arts and literature and called openly for greater government censorship.

The defeat of Robert Bork's Supreme Court nomination was not, of course, the end of the long and ongoing campaign to infuse the federal courts with a similar right-wing ideology, particularly on economic issues. Subsequent far-right nominees have successfully masked their ideology until after confirmation. And Bork remained a folk hero for the right wing of the Republican Party, which is why presidential candidate Mitt Romney, struggling to shore up support from the Party's base, named Bork to head his judicial advisory team. It was a clear indication that Romney was prepared to sacrifice Americans' interests to the big business and Religious Right interest groups that dominate the GOP.

So let us extend our sympathy to Robert Bork's family and friends. But let us also take a stand for an important historical truth: the successful fight against his confirmation was a noble cause, and his defeat was one of the most important progressive victories.