Robert Bork Leaves Legacy for Right and Left

This piece was co-authored with William N. Eskridge, the John A. Garver Professor of Jurisprudence at Yale Law School.

The death of influential former judge Robert Bork marks the conclusion of a career in conservative advocacy, on and off the bench, and the closing of an era in American politics.

Bork championed a narrow view of Constitutional rights, from his textbook on antitrust law and lecture against legal recognition for contraceptive use in the 1970s to his ill-fated 1987 Senate hearings for a seat on the Supreme Court and later writings. He became a standard-bearer against two movements that transformed U.S. society during his four decades on the national stage: the struggle for women's equality and the coming-out of the gay and lesbian community, amid political backlash and the AIDS epidemic.

Bork's opposition to women's and gay people's quest to extend equal protection and privacy, including abortion and homosexual sodomy, earned him accolades on the right and adversaries on the left. Yet each side has taken to heart the lessons of his losing bid for the high Court and his tirades against liberal judicial activism, applying them effectively in showdowns that will continue long after his passing.

Bork's role as a lightning rod in the politics of privacy and sexuality predates the epic confirmation fight. His conservative articles and reputation helped him win tenure as a Yale law professor (1962-75) and selection by Presidents Nixon and Ford as solicitor general (1973-77). When he returned from Washington to the Yale Law School in the 1977-78 academic year, students petitioned to add "sexual orientation" to the school's anti-discrimination policy. The policy barred law firms and other employers from interviewing on campus if they discriminated on the disapproved grounds, including other forms of bias. Professor Bork became the leading opponent of the proposal to add "sexual orientation" as a basis for discrimination complaints.

Consistent with his lectures at the time, Bork's main objection was that the law school should not dictate its own moral code to law firms. If they chose not to hire known "homosexuals," that was their right. After a heated debate, the faculty overwhelmingly rejected Bork's arguments and added "sexual orientation" to the list of protected characteristics, which included race and gender. Indeed, then-law student Sonia Sotomayor successfully filed a complaint under these other anti-bias grounds of the policy soon after Bork's return to Yale.

Bork does leave a legacy in the letter of the law. Even here, however, it is often as the reminder of a period whose repressive jurisprudence is giving way to inclusion.

An appointee of President Reagan, Bork became a judge on the prestigious D.C. Circuit Court of Appeals (1982-88). His most influential opinion was Dronenburg v. Zech (1984), which rejected a gay serviceman's challenge to the armed forces' exclusion of personnel because of their presumed homosexual conduct. Judge Bork's narrow reading of the Supreme Court's privacy precedents was a harbinger of Justice White's opinion in Bowers v. Hardwick (1986), which echoed Bork in ruling that gay people's claim that their activities deserved constitutional protection was, "at best, facetious."

The federal ban on openly gay service members became history in 2011. And Bowers, one of the most widely reviled Supreme Court opinions of all time, was overturned in 2003. Author of that ruling was none other than Justice Anthony Kennedy, the man who ultimately filled the Supreme Court seat that Bork had coveted.

For the right, Bork's difficulty explaining himself in testimony before the Senate and his bearded, severe, and less-than-empathetic persona before the nation's television cameras made him a defining example of poor public relations. His confirmation fight led to much greater discipline among conservatives in selecting and selling to the voters their candidates for political office and the bench.

Both George Bushes, father and son, drew on the debacle to market themselves as "compassionate conservatives." Both soft-pedaled the anti-abortion and anti-gay ideology of their party platforms and some of their most prominent supporters during their victorious 1988 and 2000 presidential campaigns. Both skillfully managed the appointment processes of their own, markedly younger, more telegenic, and less plain-spoken nominees now serving on the Supreme Court: Clarence Thomas, John Roberts, and Samuel Alito.

For the left, Bork also proved a game-changer. His stinging assertion that pro-choice advocates, civil libertarians, and gay-rights activists were overly dependent on courts to shape the law because they could not win elections or sway legislatures became a generational challenge. Beginning in the late 1980s, regrouping from defeat of the Equal Rights Amendment, women's and gay organizations began systematic efforts to organize state-based coalitions, recruiting clergy, labor allies, and business leaders.

More than two decades later, this strategy is paying dividends. Diligent work at the grassroots has swung public opinion and referendum outcomes on gay people's full equality. Since 1992, when Colorado voters approved a sweeping anti-gay amendment to their state constitution barring any policy to counteract unfair treatment, voters in states as diverse as Idaho and Michigan defeated similar initiatives. Just this year, results at the ballot box for supporters of same-sex marriage changed from setbacks to ringing victories, in Maine, Maryland, Minnesota, and Washington state.

Bork's restrictive outlook on sexuality and civil rights carried him far. Many conservatives cut their teeth on his heartfelt beliefs and drew insights from his high-profile defeat. But resistance to his arguments also galvanized colleagues and scholars--and a legion of women and men whose progressive activism shall long outlive him.