Robert Bork appears in these excerpts not as the subject of a biographical account but as a recurring reference point in a debate over the proper role of judges. Two guests invoke him when describing the school of thought known as judicial deference, and one of them credits the fight over his nomination with creating the modern confirmation process.
Judicial deference and restraint
In a discussion of judicial activism versus judicial restraint, Damon Root identified Bork as an example of the view that courts should stay out of democratically enacted laws. Root described a consistent position held by people who say the courts should be hands-off and should not interfere with the elected branches of government, and said that both Robert Bork and John Roberts are pretty good examples of it. Root placed this in the context of a debate he said has run a century and a half over the role of the courts, and noted that the phrase judicial activism is typically used as an insult, describing decisions the speaker does not like Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root contrasted that deferential posture with Roberts’s 2012 vote upholding the healthcare law, which Roberts described as an act of judicial restraint. Root said Roberts did not necessarily like the law but felt his role was to defer to Congress and the president, and that most conservatives and libertarians disagree with the outcome. Bork functions in this passage as the earlier exemplar of the same disposition Root attributes to Roberts Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The conservative passivist school
Ilya Shapiro placed Bork in a specific lineage of conservative legal thought. He said it is unfortunate that over the years a lot of judges, including Robert Bork, Antonin Scalia, and John Roberts, belong to the school holding that judges should defer as much as possible, until the breaking point, to Congress or to executive agencies. Shapiro called this conservative judicial passivism, the opposite of activism, and said neither one is good Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro’s argument was that the real question is not whether a judge is restrained or activist but whether the judge is engaged — scrutinizing what the other branches do and striking down what goes beyond the statutory text or constitutional provision. He traced the presumption of constitutionality to 1937, saying that between 1937 and 1995 no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated powers of the Constitution. In that account, Bork belongs to the conservative response to judicial excess, which Shapiro characterized as asking why unelected judges should strike down laws passed by elected representatives rather than disputing the underlying legal theory Ilya Shapiro on the Supreme Court in the Balance (2016).
The confirmation fight
Shapiro dated the modern, politicized confirmation process to the 1980s and to Bork. He said the poisoned, very politicized, nasty, brutal, long slog started in the ’80s with Robert Bork, when Ted Kennedy went on the floor of the Senate and attacked Bork, delivering a speech about what Kennedy called “Bork’s America,” in which, Shapiro said, Kennedy claimed all the civil rights gains for the last 100 years would be reversed. Shapiro said it has really only been less than 30 years that the nomination and confirmation process has been what it is Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro also noted that confirmation hearings for a Supreme Court justice were first held in 1916, because the nominee was Jewish, and that the first nominee to testify at his own confirmation hearing was Byron White, nominated by President Kennedy in 1962, in a very short hearing. He did not blame political actors for the later state of affairs, attributing it instead to what he called constitutional corruption Ilya Shapiro on the Supreme Court in the Balance (2016).
Across episodes
Two episodes touch on Bork. In the 2014 episode, Damon Root names Bork alongside John Roberts as an example of judicial deference and restraint, in a segment on the meaning of judicial activism. In the 2016 episode, Ilya Shapiro names Bork alongside Antonin Scalia and Roberts as a conservative passivist and separately credits the fight over Bork’s nomination with starting the modern confirmation process. The excerpts show no development in the treatment of Bork between the two: the later episode adds the confirmation-history point and a third name to the passivist list, but the characterization of his judicial philosophy is consistent across both.
What the sources do not cover
The excerpts contain no biographical information about Bork — no dates, no positions held, no account of his nomination’s outcome. They do not state what legal theories he advanced in his own writing, nor which cases or provisions his views are said to turn on. The specific content of Ted Kennedy’s speech is reported only in Shapiro’s summary, and the excerpts do not say when the Bork nomination took place beyond placing it in the 1980s.