WI Robert Bork Confirmed To The Supreme Court

Pericles

What if Robert Bork had been confirmed to the US Supreme Court? It doesn't necessarily have to be in 1987-as I've heard that if Reagan nominated Bork to Rehnquist's seat and Scalia to Powell's seat, both could have been confirmed-though a PoD for Bork on the Court in 1987 would be fine too(would Bork have been confirmed with a Republican Senate, as even a slight swing in 1986 would have meant Republicans kept the majority). How would the Supreme Court be affected by Bork being on it? Would Roe vs Wade have been overturned? If so, what impact would this have on US abortion rights and politics? And what other decisions would Bork make? It's also been claimed Bork's rejection made Supreme Court confirmations more partisan, would they be less partisan if he were confirmed or would it have made no difference? What if?
 

Tank Cdr

If Roe vs Wade was overturned, it would go back to the states to regulate abortion. Depending how liberal or conservative each individual state is will determine the restrictions or lack of, lawsuits of course will follow, will the Supreme Court eventually hear one of them is a big question. Would it get overturned? Personally I doubt it, it is established precedent and a hot button issue that the court would be smart not to touch. Perhaps the best, or worst depending on your view, you would get is restrictions on how late into the pregnancy a woman can get an abortion.
 

Anarch King of Dipsodes

There are two categories of knock-on from this.

One is Supreme Court decisions which may have been decided differently if Bork had been on the Court instead of Kennedy. We'll get back to that area.

However, there is another category which must be considered first: subsequent appointments to the Court. Suppose Bork had not been "Borked": if he had been appointed earlier, without controversy, or nominated at the same time as OTL, and confirmed without the smear campaign.

Then later nominations by GHW Bush would not have been made with as much regard for confirmability. Souter was selected partly because he had no record on 'hot-button' issues; Thomas because he was black and therefore harder for Democrats to oppose. I don't know who Bush might have chosen instead. Souter had the endorsement of John Sununu, Bush's chief of staff, who was former Governor of New Hampshire, so he might have been chosen anyway.

However, the simplest TL is that Bork is attacked as OTL, but is narrowly confirmed, and that Bush therefore nominates Souter and Thomas.

So... what were major 5-4 decisions where it is certain Bork would have voted differently from Kennedy? One is U.S. Term Limits, Inc. v. Thornton (1995), in which the Court struck down the laws in 23 states which limited the tenure of US Senators and Representatives. Kennedy was in the majority, while Bork filed an amicus brief in support of USTL. If the decision was reversed, by 2008 at least 19 Senators and 183 Representatives who were then in office would have been forced out.

At least, because additional states might have enacted term limits, but after USTL v. Thornton, no states even tried.
 

GeographyDude

Gone Fishin'
I wonder if there would be other glaring cases like Citizens United (2010) that might really start to erode the credibility of the Court,

or existing cases that might be looked at more skeptically?
 

GeographyDude

Gone Fishin'
And I think Memphis v. Greene (1981) was a very underappreciated case. The City of Memphis closed a street separating the predominantly black and white sections of the city, and the U.S. Supreme Court eventually ruled A okay, just fine, can't prove discriminatory intent, so it stands. I think the city might be listed first because they lost at the appeals court level and were the ones to ask Supreme Court to review.

I always thought that part of the standard included . . . or major discriminatory effect. But, apparently not in this case.

* Yes, this was pre-Bork, but maybe with him on board, the Court makes similar or worse decisions, and people look back at this one.
 
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Anarcho-Occultist

Anarcho-Occultist

Assuming Bork doesn’t retire and his death occurs on schedule, I could see choosing his successor being very complicated. He died in December of 2012, which is between the election and inauguration. If there is a change in the party in power that year (which is certainly possible given likely butterflies), it’s not impossible a lame duck tries to name someone to fill his seat, which would be controversial.
 

GeographyDude

Gone Fishin'
If the Supreme Court loses credibility with the American public . . .

maybe a Constitutional Amendment which revokes corporate personhood?

and maybe even more far-reaching amendments?
 

The Avenger

Banned
Anarch King of Dipsodes said:
There are two categories of knock-on from this.

One is Supreme Court decisions which may have been decided differently if Bork had been on the Court instead of Kennedy. We'll get back to that area.

However, there is another category which must be considered first: subsequent appointments to the Court. Suppose Bork had not been "Borked": if he had been appointed earlier, without controversy, or nominated at the same time as OTL, and confirmed without the smear campaign.

Then later nominations by GHW Bush would not have been made with as much regard for confirmability. Souter was selected partly because he had no record on 'hot-button' issues; Thomas because he was black and therefore harder for Democrats to oppose. I don't know who Bush might have chosen instead. Souter had the endorsement of John Sununu, Bush's chief of staff, who was former Governor of New Hampshire, so he might have been chosen anyway.

However, the simplest TL is that Bork is attacked as OTL, but is narrowly confirmed, and that Bush therefore nominates Souter and Thomas.

So... what were major 5-4 decisions where it is certain Bork would have voted differently from Kennedy? One is U.S. Term Limits, Inc. v. Thornton (1995), in which the Court struck down the laws in 23 states which limited the tenure of US Senators and Representatives. Kennedy was in the majority, while Bork filed an amicus brief in support of USTL. If the decision was reversed, by 2008 at least 19 Senators and 183 Representatives who were then in office would have been forced out.

At least, because additional states might have enacted term limits, but after USTL v. Thornton, no states even tried.
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Bowers v. Hardwick would also not have been overturned if Bork would have been on SCOTUS. Texas's anti-sodomy law would have still been struck down due to O'Connor's vote, but on equal protection grounds rather than due process grounds.

Also, Bush v. Gore--if it is still that close (which certainly isn't guaranteed due to the butterfly effect!)--might be decided on Article II grounds rather than equal protection grounds. Article II officially only got three votes, but if Bork is in favor of it, O'Connor might become in favor of it as well--thus getting it up to five votes.
 
Peabody-Martini

Peabody-Martini

He would have been as corrupt on the Supreme Court as he was everywhere else. The preferred end for him in your alternate TL involves impeachment, trial, and imprisonment.
 

Don Corleone

Heller v DC might have gone the other way. Bork didn't believe in an individual right to bear arms.

So in one sense, Borking was a Pyrrhic victory for Democrats.
 

The Avenger

Banned
Landmass Wave said:
Heller v DC might have gone the other way. Bork didn't believe in an individual right to bear arms.

So in one sense, Borking was a Pyrrhic victory for Democrats.
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Yeah, Bork personally believed in gun rights but didn't believe that the 2nd Amendment protected an individual right to bear arms.
 
History Learner

History Learner

Banned
Robert Bork and the Contingencies of History

Robert Bork's passing reminds us of how much the development of constitutional doctrine depends on contingencies. Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger's retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate. You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork's remarkable paper trail of opposition to civil rights and civil liberties. Scalia had not, for example, opposed the 1964 Civil Rights Act on grounds of individual liberty (Bork later recanted his opposition), and Scalia had not argued in a famous law review article that non-political speech was unprotected by the First Amendment.

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years.

This last statement, of course, conceals its own contingencies. We don't know whether O'Connor would have voted the same way she did in Webster and Casey, and we don't know whether George H.W. Bush would have nominated Souter and Thomas to replace Brennan and Marshall. If Bork was successfully nominated in 1986, and Scalia avoided the same treatment that Bork received in 1987, then the Bork hearings wouldn't have happened, and no precedent of bitter and polarizing confirmation battles would have been established.

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired. Therefore there might have been no "stealth nomination" of David Souter-- and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court. (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court. A five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones might have cut a broad swath through existing liberal doctrines, and the cause of gay rights would have made almost no progress.

This didn't happen. Reagan miscalculated, or rather, he didn't foresee the Iran-Contra scandal and losing the Senate in the 1986 elections. Democrats saw their chance and fought hard to defeat Bork. Then, after Bork was defeated, the fracas over Douglas Ginsburg's marijuana use (this was 1987 after all) wasted more precious time, and by then the 1988 elections were less than a year away. Eager to put the appointment mess behind him, Reagan nominated the more moderate Anthony Kennedy. George H.W. Bush chose David Souter to avoid a replay of the Bork nomination, and the rest, as they say, is history.

In Bork's subsequent career as an author and pundit he moved decisively from economic libertarian to social and religious conservative, and he became increasingly bitter and disdainful of what he viewed as the decline of American culture. This does not speak well for what he would have done as a Supreme Court Justice. Indeed, he might have made Scalia seem positively cheerful and moderate by comparison.

Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor and Solicitor General).

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation. As it is, the Rehnquist and Roberts Courts have moved doctrine considerably to the right in a number of areas. One can only imagine what a Court staffed with Bork, Scalia and Thomas might have done.
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V-J

V-J

The notion that Bork would have been confirmed in 1986, which let's remember was an election year for the senate, is rather questionable, given the slim Republican majority. The Bork 'No' vote in 1987 attracted the moderate/liberal Republican senators as well as almost all Democrats, and they'd be joined by Charles Mathias in 1986. That should be a slim majority to bork Bork.

Even assuming that Bork scrapes through, though, I find the notion that a Democratic senate would allow Scalia - and future Conservatives - to sail into post after the genie of that fight over Bork has already been opened even more questionable.

(If Bork is borked in 1986, btw, then it's highly unlikely that the replacement nominee would be able to be dealt with by the Senate before November. As is, I think RR made absolutely the right call - I can imagine a similar discussion to this in the ATL where neither Scalia or Bork are on the court, about what a clown he was....)
 
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GeographyDude

Gone Fishin'
The Avenger said:
Bowers v. Hardwick would also not have been overturned if Bork would have been on SCOTUS. Texas's anti-sodomy law would have still been struck down due to O'Connor's vote, but on equal protection grounds rather than due process grounds.
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Bowers v. Hardwick (1986) was a Georgia case in which a cop went to serve a warrant for an open container pertaining to alcohol. A house guest said, he’s in there. The guest should have said, I’ll go get him, would have saved everyone a lot of trouble.

The police officer went to the bedroom and saw Hardwick and another man engaged in oral sex. Whoop-de-do, many heterosexuals like oral sex, too. And even though that’s not what he came for,

The cop made the arrest, but . . .

https://books.google.com/books?id=l...were never presented to a grand jury"&f=false

" . . . formal charges were never presented to a grand jury . . . "
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Usually, the Supreme Court hates cases like this, and doesn’t want to do anything which smacks of a hypothetical case.

I think if four Justices vote to take a case, the Court will take. I’ll say it, the Justices who voted to take this case kind of broke their own rules.
 

The Avenger

Banned
GeographyDude said:
Bowers v. Hardwick (1986) was a Georgia case in which a cop went to serve a warrant for an open container pertaining to alcohol. A house guest said, he’s in there. The guest should have said, I’ll go get him, would have saved everyone a lot of trouble.

The police officer went to the bedroom and saw Hardwick and another man engaged in oral sex. Whoop-de-do, many heterosexuals like oral sex, too. And even though that’s not what he came for,

The cop made the arrest, but . . .

Usually, the Supreme Court hates cases like this, and doesn’t want to do anything which smacks of a hypothetical case.

I think if four Justices vote to take a case, the Court will take. I’ll say it, the Justices who voted to take this case kind of broke their own rules.
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They did take the case, they made their judgment, and their judgment would have remained in place in this scenario, though.
 

The Avenger

Banned
The fact that a case shouldn't have been taken by SCOTUS doesn't mean that the ruling with SCOTUS made in this case is invalid.
 
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