Works and views
Bork wrote several books, including the two best-sellers The Tempting of America, about his judicial philosophy and his nomination battle, and Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argued that the rise of the New Left in the 1960s in the U.S. undermined the moral standards necessary for civil society, and spawned a generation of intellectuals who oppose Western civilization. During the period these books were written, as well as most of his adult life, Bork was an agnostic, a fact used pejoratively behind the scenes by Southern Democrats when speaking to their evangelical constituents during his Supreme Court nomination process. Bork's 1971 Indiana Law Journal article "Neutral Principles and Some First Amendment Problems" has been identified as one of the most cited legal articles of all time.
In The Tempting of America, p. 82, Bork explained his support for the Supreme Court's desegregation decision in Brown v. Board of Education:
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases… The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.Bork opposed the Civil Rights Act of 1964, saying that the provisions within the Act which prohibited racial discrimination by public accommodations were based on a principle of "unsurpassed ugliness". He came to repudiate his earlier views, saying in his 1987 confirmation hearing that the Civil Rights Act and other racial equality legislation of the 1960s "helped bring the nation together in ways which otherwise would not have occurred."
Bork opposed the 1965 Supreme Court ruling in Griswold v. Connecticut, which struck down a Connecticut Comstock Act of 1873 that prohibited the use of contraceptives for married couples. Bork said the decision was "utterly specious", "unprincipled" and "intellectually empty". Bork argued that the Constitution only protected speech that was "explicitly political", and that there were no free speech protections for "scientific, literary or that variety of expression we call obscene or pornographic."
Bork was known for his disregard for the Ninth Amendment. When asked about his views on unenumerated constitutional rights during his confirmation hearings by Arizona Senator Dennis DeConcini, Bork famously compared the Ninth Amendment to an uninterpretable inkblot, too vague for judges to meaningfully enforce.
In 1998, he reviewed High Crimes and Misdemeanors: The Case Against Bill Clinton, conservative pundit Ann Coulter's book on impeaching Clinton, pointing out that "'High crimes and misdemeanors' are not limited to actions that are crimes under federal law."
In 1999, Bork wrote an essay about Thomas More and attacked jury nullification as a "pernicious practice". Bork once quoted More in summarizing his judicial philosophy. In 2003, he published Coercing Virtue: The Worldwide Rule of Judges, an American Enterprise Institute book that includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focused on problems he viewed as inherent in the federal judiciaries of Israel, Canada, and the United States—countries where he believes courts have exceeded their discretionary powers, discarded precedent and common law and instead substituted their own liberal judgment.
Bork advocated modifying the Constitution to allow Congressional supermajorities to override Supreme Court decisions, similar to the Canadian Charter of Rights and Freedoms' notwithstanding clause. Though Bork had many liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control, Bork denounced what he called the "NRA view" of the Second Amendment, something he described as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he argued that the Second Amendment merely guarantees a right to participate in a government militia, that its intent was to guarantee the right of militia membership, not an individual right to bear arms. He is quoted as saying that the gun lobby's interpretation of the Second Amendment was intentional deception, not "law as integrity," and that states could technically pass a ban on assault weapons.
Bork converted to Catholicism from Presbyterianism in 2003.
In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court, saying her nomination was "a disaster on every level."
On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club's failure to provide any steps or handrail between the floor and the dais. (After his fall, he successfully climbed to the dais and delivered his speech.) According to the complaint, Bork's injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp. In May 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.
On June 7, 2007, Bork with several others authored an amicus brief on behalf of Scooter Libby arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the Morrison v. Olson decision.
On December 15, 2007, Bork endorsed Mitt Romney for president in the 2008 presidential election. He repeated this endorsement on August 2, 2011, during Romney's second campaign for the White House.
A 2008 issue of the Harvard Journal of Law and Public Policy collected essays in tribute to Bork. Authors included Frank H. Easterbrook, George Priest, and Douglas Ginsburg.
