Posted by David Bernstein:
Epstein on Bork:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247247315
In the latest issue of Regulation, Richard Epstein [1]has a scathing
review (go to page 3) of Robert Bork's [2]latest book, a collection of
his writings over several decades:
what is so striking about Bork's collection of ipse dixits is that
they never rest on the close and careful reading of text that the
originalist method mandates. Thus, the real indictment of Bork lies
not in the views that got him into such hot water in his 1987
confirmation hearings. Historically, the regulation of
contraception was subject to state regulation under the police
power, notwithstanding Justice William O. Douglas's artful
invocation in Griswold v. Connecticut of "penumbras" of the Bill of
Rights. What really makes Bork a disappointing constitutional
scholar is that his moral self-indulgence has led to an utter lack
of intellectual discipline.
So this review ends by pointing out this historical irony: When
Bork was constrained by the institutional requirements of the
judicial role, his evident intellectual and stylistic talents shone
through. He was an excellent judge. Indeed, had history been kinder
to him, he would have been a distinguished Supreme Court justice
because his temper would have been held in check by the norms of
his office. But I couldn't persuade a soul of the soundness of that
counterfactual judgment if one took his extrajudicial writings as a
barometer of probable judicial performance.
Sadly, it is easy to explain why a great antitrust scholar has had
so little influence in constitutional law. Bork may think it is
time for him to speak out on constitutional issues. But most people
will just tune him out, and for good reason.
Harsh, but not unfair. I often describe Bork as "an originalist who
seems to have little interest in history," but who instead uses
originalist arguments to support a preconceived ideology of judicial
restraint and social conservatism.
References
1. http://www.cato.org/pubs/regulation/regv32n2/v32n2-8.pdf#page=3
2.
http://www.amazon.com/Time-Speak-Selected-Arguments-Institutions/dp/1933859687
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
