Somin Comments on Bork in Online Symposium

Writing in a National Review Online symposium called "Remembering Judge Bork," Professor Ilya Somin called the late judge an outstanding legal scholar and jurist, citing his path-breaking work on antitrust law and economics in the late 1960s and 1970s. 

Somin acknowledges the controversial nature of Bork's theories on constitutional law, while reflecting that "Today, even many prominent liberal scholars accept the general framework of 'original meaning' originalism defended by Bork, even though they vehemently disagree with him about particular cases." He also points out contradictions in Bork's legal and political thought.

"The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork's legacy," says Somin. "In the long run, however, I think he will be remembered for his important contributions to legal thought—even by those who, like myself, disagreed with many of his conclusions."

Remembering Judge Bork, National Review Online, December 19, 2012. By Ilya Somin.

"In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power. Bork occasionally seemed to recognize this reality, but also often argued as if there were no trade-off between originalism and deference. Second, Bork advocated extensive government regulation and 'censorship' (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation."