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The Bork Paradox and the Conservative Legal Movement

On July 1, 1987, Senator Edward Kennedy took to the Senate floor to deliver perhaps the most famous denunciation of any judicial nominee in American history. His target, whose Supreme Court nomi­nation had been announced that very day, was a graying sixty-year‑old judge on the powerful Court of Appeals for the D.C. Circuit, with a legendary academic reputation in the field of antitrust law. But that wasn’t the focus of Kennedy’s ire. At stake was inter­pretive methodology—the question of how the centuries-old words of the Constitution should be read to apply to modern conditions. As Kennedy put it,

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in mid­night raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our demo­cracy.1

Accurate or not, the scorched-earth attacks worked (and the verb “borking” entered the public lexicon). Bork’s nomination was voted down 42–58, and the vacant Supreme Court seat would ultimately be filled by Anthony Kennedy. Justice Kennedy’s constitutional vision would not prove as circumscribed as Bork’s: Kennedy would even­tually identify a constitutional right to same-sex marriage in Obergefell v. Hodges, and—in what fellow justice Antonin Scalia scathingly described as the “sweet-mystery-of-life passage”2—once famously opined that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”3

Bork’s defeat was a particularly bitter pill for the nascent conservative legal movement to swallow. Bork was one of the speakers at the Federalist Society’s very first symposium, and early Society leaders Steven Calabresi and Peter Keisler served as law clerks to Bork during his brief tenure on the D.C. Circuit. But Bork’s failed nomination did not permanently cripple the movement. Over the decades that fol­lowed, the Society would go on to incubate and develop the “ori­ginalist” philosophy of judicial interpretation that Bork espoused—a commitment to discerning and applying “the meaning [the Constitution] was understood to have when adopted.”4 And the sheer pun­gency of Bork’s nomination battle was certainly not forgotten: for movement veterans, the 2018 fight over Brett Kavanaugh’s Supreme Court nomination—for the very same seat denied to Bork—would hauntingly recall that 1987 struggle, galvanizing support during the most brutal days.5

The Supreme Court nomination battle was the defining chapter of Bork’s public career—and it is the only thing for which most Ameri­cans likely know him today. Following his failed nomination, Bork left the bench and returned to the academic world, penning harsh critiques of prevailing constitutional theory (The Tempting of Amer­ica, 1990) and cultural decadence (Slouching towards Gomorrah, 1996) before his death in 2012.

Mostly forgotten, except among specialists, is Bork’s greatest success: his role in a historic transformation of antitrust law that revolutionized the field among academics and judges alike. It was this transformation—rooted in the same narrow understanding of the judicial function that Senator Kennedy so deplored—that launched Bork to academic promi­nence in the first place. To this day, Bork’s understanding of antitrust law governs the field, directing judges to prioritize a price-focused conception of “consumer welfare” and reject attempts to introduce more political considerations into the analysis. The beneficiaries of this transformation have disproportionately been large firms, which have grown bigger and bigger in recent decades—culminating in the emergence of the goliath technology companies that structure vast swaths of American life and commerce. And the world these companies have built looks, more and more, like Bork’s own late-in-life vision of Gomorrah.

But Bork’s paradoxical triumph does not end there. Originalism, for its part, is no longer a fringe method. Indeed, a crucial vindication arrived in 2010, when Supreme Court nominee Elena Kagan quipped at her own confirmation hearing that “we are all originalists.”6 Her nomi­nation did not fail. And textualism—originalism’s close relative, which favors restricted readings of statutory text—is similarly main­stream today.7

Moreover, it was Republican-appointed justice Neil Gorsuch—a self-identified originalist and textualist—who penned the Supreme Court’s decision in Bostock v. Clayton County, which extended exis­ting Title VII workplace protections to sexual orientation and gender identity. No doubt the authors of Title VII in 1964 could surely never have foreseen such a result, but this did not trouble the Court: for Gorsuch, what mattered was strictly the text, rather than “naked policy appeals” of the sort Bork spent so long writing against.8 Justice Gorsuch’s decision was feted by some “progressive originalists” as a triumph of text-centric interpretation, and denounced by many others. But at the very least, Bostock seems to reflect a rather different conception of judicial “modes­ty” than what Bork himself ever had in mind.

One of history’s great ironies thus presents itself. Despite his own personal repudiation by the Senate, Bork’s core ideas have survived and thrived, penetrating politics and economics at the highest levels. So perhaps it is time to pose the question: What if Ted Kennedy had it all backwards? What if we are actually living in Robert Bork’s Amer­ica today?

Mathematizing Antitrust

In 1978, Bork published The Antitrust Paradox, which proved to be a bombshell text in the field. The book opens with an extended denun­ciation of what Bork viewed as the weaponization of federal antitrust laws—the Sherman and Clayton Acts, which render monopolies and monopolistic conduct illegal—against successful firms. For Bork, judges had systematically “failed to understand and give proper weight to the concept of business efficiency,” instead pursuing “the harassment of business” on political grounds beyond the judicial ken.9

Bork’s alternative proposal was straightforward enough: mathematize antitrust, by focusing above all else on whether dominant firms in a market were using their position to extort consumers by charging higher and higher prices. And this was not merely a matter of good policy, but methodologically urgent if the rule of law was to be preserved. As he put it, “consideration of the virtues appropriate to law as law demonstrates that the only legitimate goal of antitrust is the maximization of consumer welfare.”10

Not coincidentally, at the heart of Bork’s philosophy of antitrust was the vision of law—and the judicial role—that came to characterize the rest of his career: a desire to make law as predictable and “mechanical” as possible. In his words, “[t]he need of the law general­ly is for the systematic development of normative models of judicial behavior, models which, while they cannot attain, will at least distant­ly approach the rigor of the descriptive models of basic economic theory.”11

In that spirit, what this antitrust paradigm came to look like in practice was a singular focus on pricing and market definition—both of which can be modeled economically. With the aid of some expert research, judges can reasonably assess whether, as a result of monopolistic or oligopolistic business practices, consumers within a defined mar­ket are being forced to pay higher prices. Such a precise and “objective” assessment, however, cannot be made on less tangible grounds; are judges equipped to make judgment calls about whether a successful firm is exercising its dominance in other ways not directly harmful to consumers? Any other attempt by courts at distinguishing between competitive and anticompetitive practices on non-consumer-welfare grounds was, for Bork, “utterly beyond the economic compe­tence of the time,” and such an endeavor “remains beyond the law’s economic competence in our time.”12

Bork reserved some of his harshest criticisms for Supreme Court Justice Louis Brandeis, antitrust enforcer par excellence. In Bork’s view, Justice Brandeis failed by “introducing considerations of pro­ducer wel­fare into the law as a policy competitive with consumer welfare”—that is, by considering the effects of dominant firms on struggling competitors, rather than simply prioritizing the consumer.13 For Bork, the lack of predictability entailed by this approach was unconscionable: “The case-by-case resolution of such conflicts is the great difficulty in any approach that leaves conflicting policy goals in the hands of judges.”14 To reject consumer welfare as the controlling priority of antitrust law, and to treat competition as a good in itself that the antitrust laws ought to safeguard, was to set sail on “a ‘sea of doubt’ because the judge must undertake to decide how much compe­tition is a good thing on grounds other than consumer welfare.”15

Enough judges and justices agreed with Bork that the consequences of this new approach were immediately felt. In the wake of The Antitrust Paradox, Senator Amy Klobuchar has pointed out, “the Supreme Court then went along and began to cite Bork’s book, with the outcome of the Court’s antitrust cases changing dramatically.”16 The Department of Justice began pursuing fewer enforcement actions, particularly against Fortune 500 companies, and antitrust law evolved into the province of well-heeled litigants who could afford pricey economic experts and lengthy lawsuits.17

It was precisely Bork’s vision of antitrust law that rose to the fore, albeit implicitly, in Judge James Boasberg’s recent dismissal of the Fed­eral Trade Commission’s antitrust lawsuit against Facebook. In finding that the FTC had not met its pleading burden, Judge Boasberg complained that “[i]t is almost as if the agency expects the Court to simply nod to the conventional wisdom that Facebook is a monopolist,” and posited that

whatever it may mean to the public, “monopoly power” is a term of art under federal law with a precise economic meaning: the power to profitably raise prices or exclude competition in a properly defined market. To merely allege that a defendant firm has somewhere over 60% share of an unusual, nonintuitive product market—the confines of which are only somewhat fleshed out and the players within which remain almost entirely unspecified—is not enough.18

Here, certain holes in Bork’s paradigm begin to appear. In the case of “unusual” and “nonintuitive” goods such as online social networking tools—many of which crisscross traditional economic categories and are offered free to consumers (thanks to advertising)—Borkian antitrust theory stumbles because the relevant economic inputs in this market cannot be modeled in 1970s-era terms. Is the “conventional wisdom” regarding Facebook’s monopoly power really so far re­moved from reality? The Sherman and Clayton Acts are worded expansively, and it is difficult to believe that the legislators who wrote them would truly take no umbrage at the overwhelming dominance of today’s tech behemoths.19

Many academic observers have wondered the same thing. In recent years, prominent advocates of a more activist “Neo-Brandeisian” ap­proach to antitrust enforcement—such as Matthew Stoller, Tim Wu, and others—have widely decried Bork’s fixation on consumer welfare and promotion of a stringently mathematical approach to antitrust law.20 The consequences of laissez-faire antitrust enforcement, after all, have certainly not been uniformly positive.

And yet what Bork himself described as the philosophical root of his theory—his deep and abiding skepticism of the ability of judges to properly exercise discretion when presented with challenging facts—has largely remained out of view in such conversations. It was that conception of judicial “humility” that would go on to loom so large in the rest of Bork’s career, and in the legal movement he helped to birth.

Slouching toward Gomorrah

Published shortly after Bork’s failed Supreme Court nomination, The Tempting of America chronicles that chapter of his life at length, but the bulk of the text is a philosophical presentation and defense of the originalist methodology that so drew Senator Kennedy’s ire. Influenced as Bork was by the perceived constitutional excesses of the Warren Court, his creed is principally one of judicial restraint: “It is not the function of a judge to decide what is good for us.”21 By con­trast, for Bork, “the proper approach for the legislator is necessarily ad hoc, to ask whether the proposed law will do more good than harm.”22 On this framing, the judicial role can almost be de­scribed at a Schoolhouse Rock level of simplicity: Congress makes the law, judges interpret it. What could be more straightforward than that?

To be sure, there is a great deal of truth in Bork’s critique of the Warren Court and other past judicial excesses. Prior to the ascendance of originalist methodology, justices and judges did regularly depart from the original meaning of the constitutional text and en­shrine social policy preferences in law. But Bork’s position in The Tempting of America represents a kind of arch-formalism that masks an important reality: no one—and certainly no judge—stands wholly outside the set of background assumptions they bring to the judicial task.

Indeed, Bork’s own argument in The Antitrust Paradox is a case for the value of economic rationality as an “objective” interpretive principle for the federal antitrust laws. Bork’s defense of the consumer welfare standard was rooted in an effort to strip problematic elements of ambi­guity from the task of judicial interpretation—for ambiguity, of course, is an invitation for judicial mischief-making. Better, rather, to focus on something that can actually be quantified, like consumer price within a defined market. If the eponymous tempting of America is the judicial “habit of legislating policy from the bench,” does not The Antitrust Paradox offer such an object of judicial desire?23

Largely absent from Bork’s picture of judging is any conception of what Aristotle called phronesis—or practical reason—the analytical faculty by which one acts to apply principles gleaned from experience to new and contested circumstances that do not fall seamlessly within prior categories. Without such a notion, any account of judicial behavior is strikingly incomplete, because it is flatly impossible to perfectly systematize the application of legal text to facts—else, there would be no need for judges at all. It is one thing to argue that the outcomes of cases should be reasonably predictable, but it is quite another to contend that expansively written statutes—such as the antitrust laws—must be interpreted narrowly in order to conform to an arbitrarily mechanistic understanding of judging. And where the specificity of the legal text runs out, fundamental metaphysical and political intuitions must inevi­tably reassert themselves.

As the gears of history ground on, Bork would go on to decry the rise of “a triumphant modern liberalism with all the cultural and social degradation that follows in its wake.”24 Written in the waning years of Bork’s life, shortly before his conversion from agnosticism to Catholicism, Slouching towards Gomorrah is a lengthy cri de coeur against what he viewed as the many pathologies of a decadent moder­nity, from the decline of pop culture to the emergence of radical feminism. In his words, “[s]o unrelenting is the assault on our sensi­bilities that many of us grow numb, finding resignation to be the rational, adaptive response to an environment that is increasingly polluted and apparently beyond our control.”25

Interestingly enough, Bork was an early critic of the turn toward personal electronic entertainment, writing that “[a] culture obsessed with technology will come to value personal convenience above almost all else, and ours does.”26 No doubt he would be aghast at the manipulative, addictive, misinformation-drenched digital info-space that charac­terizes contemporary discourse.

But the even worse possibility that such communication channels might come to be dominated by a handful of major players, all with ideological convictions alien to Bork’s own, never seems to have entered his mind. Indeed, he defended to the last his leading role in transforming American antitrust law. At the time that Slouching towards Gomorrah was released, Bork had concluded that in recent years “the Left is no longer terribly interested in economic matters,” and reasoned that some good might be achieved through the law because at long last “the Supreme Court affords a fair hearing to the antitrust defendant.”27 Facebook, Google, and Amazon must surely appreciate the sentiment.

The failure of American antitrust enforcement, however, was a decades-long process. It took something else to force the questions surrounding Bork’s intellectual legacy—and the conservative legal movement’s trajectory as a whole—to the surface.

Penumbras of Textualism

In June 2020, the Supreme Court decided Bostock, holding by a 6–3 vote that the preexisting category of discrimination on the basis of sex under Title VII extends to discrimination on the basis of both sexual orientation and gender identity. The written opinion was not, as it might have been for Anthony Kennedy, a paean to “the mystery of human life.” Nor did it deploy anything akin to Obergefell’s soaring existential rhet­oric. Rather, the Court’s opinion came draped in pro­foundly Borkian garb.

At the close of his majority opinion for the Court, Justice Gorsuch had sharp words for the interpretive stances taken by the employers in the case—and echoed by dissenting Justices Kavanaugh, Alito, and Thomas. None of Justice Gorsuch’s language would be remotely out of place in The Tempting of America:

Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guida­nce to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or ad­dress unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.28

Bork himself could hardly have said it better: for Justice Gorsuch, judges are to handle the text, the text, and nothing but the text. Anything else must be the province of Congress. So why such backlash from social conservatives? Isn’t strict interpretation of statu­tory language the point? The structure of Justice Gorsuch’s logic in Bostock was, on its face, straightforward: if a member of the category “a man who has sex with men” is not treated the same way as a member of the category “a woman who has sex with men,” discrimination on the basis of sex has occurred. (And so too for men or women who dress and behave like members of the opposite sex.)

But crucially, Justice Gorsuch’s framing assumes that the operator “has sex with” describes an essentially equivalent behavior: are these relations the same sort of thing, just with differently sexed individuals involved? Correct or not, that was certainly not the dominant view in 1964—as evidenced by the fact that laws against sodomy, a purported “crime against nature,” persisted until 2003.29 Criminalization of sodo­my was rooted in the nature of the act itself, not the sex of the participants as such.30 (A similar argument can be made about gender-conforming behaviors.)

To put it another way, the categories of sexual orientation and gender identity simply did not exist in 1964 in the same way that they do today. In embedding these assumptions at the heart of Bostock, Justice Gor­such’s reasoning revealed itself to be pervaded by what Bork called “the assumptions of modern liberal culture,” eisegeting the past through a profoundly contemporary lens.31 And yet according to the method inherited from Bork and his acolytes, it would be inappropriate for a judge to excavate and challenge these assumptions directly, because doing so would involve recourse to interpretive resources outside the text itself.

From a slightly different angle, the irony runs deeper still. When the plaintiffs in Bostock arrived at the Court, they did so backed by a flotilla of amicus briefs from the nation’s largest corporations, which have come to dominate ever-larger expanses of the American econ­omy since Bork’s antitrust philosophy became dominant.32 There is a hauntingly analogical relation here between the heart of Bork’s anti­trust paradigm and the priorities of corporate America: what could be a more perfect manifestation of “consumer welfare” than the right to define oneself according to one’s deeply felt sense of personal iden­tity? The consumer of late modernity, after all, is characterized by what Carl Trueman has termed “expressive individualism”—self-defi­nition through self-chosen self-presentation.33

And this, of course, is saying nothing of the power of increasingly dominant telecommunications firms to ensure that individuals who happen to disagree with the expressive-individualist construal of reality are policed ever more aggressively. In eschewing the right of judges to enforce the antitrust laws on grounds beyond the narrowly economic, Bork helped ensure that this dominance—and the ideological monoculture that necessarily results—could never be seriously contested in the courts.

In the end, Bork was quite correct when he observed that “[w]hat liberalism has constantly moved away from are the constraints on personal liberty imposed by religion, morality, law, family, and com­munity.”34 That gradual drift is, after all, the quintessence of liberalism. What he never appears to have grasped was his own role in shoring up that liberalism.

The Contradictions of the
Conservative Legal Movement

It is a liberalism that the conservative legal movement, as it exists today, is poorly positioned to resist. Despite its long line of apparent political successes, the movement’s central philosophical tenets have never been more unsettled.

Since its inception, the Federalist Society—the movement’s undis­puted epicenter—has proclaimed itself committed to three principles: “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”35 On their face, these propositions seem quite anodyne, even banal.

Some have disagreed. While judges and justices are regular fixtures at movement events, the Code of Conduct for United States Judges forbids, among other things, “political activity” and actions that fail to “uphold the integrity and independence of the judiciary.”36 In January 2020, the Judicial Conference of the United States circulated a draft ethics opinion suggesting that judicial membership in the Fed­eralist Society might violate these canons.37 In response, more than two hundred federal judges joined a letter in opposition, arguing that the Society’s “broad, bedrock principles lie at the foundation of our American constitutional order. . . . Adherence to these principles at most suggests partiality in favor of the Constitution itself, which all judges must support and defend.”38

The draft opinion was subsequently withdrawn, and judicial par­ticipation in the Society permitted. But beneath the surface, the dispute draws attention to the movement’s fundamental catch-22: either these founding principles are not so neutral after all, and embed extratextual background beliefs about the content and purpose of law (the Judicial Conference’s original concern), or they operate at such a high level of generality that there really is not much of a “conservative legal movement” at all (implicit in the judges’ rejoinder). The latter is probably more correct; as Ken Kersch has chronicled, the “deep constitutive stories” that have underpinned the legal Right from the start—ranging from libertarian anticommunism to “Thomist nation­alism”—have never seamlessly aligned with one another.39

One need only scratch the surface of the Federalist Society’s core principles to uncover these persistent cleavages. For one thing, what exactly is the nature of the “freedom” that the state exists to preserve? For the libertarian, freedom may mean simply the absence of state coercion; for the republican, it may mean a measure of economic self-determination; for the religious traditionalist, it may mean the free­dom to pursue the divine within a well-ordered society. Similarly, it is all well and good to urge courts to “say what the law is, not what it should be,” but does any judge, however radical his rulings, really conceive of himself as acting outside the law altogether? In the case of the Fourth Amendment, a judge who applies old text to new circumstances—such as cell phones and the internet—must necessarily rely on extended chains of analogy that go well beyond straightforward derivations from the text. As far as legal theory is concerned, what Bork described as “the rigor of the descriptive models of basic eco­nomic theory” must remain far out of reach.40

Pretending that background philosophical questions ought not be asked as a matter of principle does not, in the end, keep them from being answered; it simply keeps them from being answered transparently. Maintaining a calculated agnosticism on these points simply ensures that the movement’s dominant voices will inevitably become those stakeholders with the greatest financial, cultural, and political power—namely, those corporations that have benefited greatly from economic deregulation and sluggish antitrust enforcement. Social conservatives who share Bork’s concerns over the trajectory of mass culture, but lack the footholds necessary to drive the movement’s priorities, will find themselves sidelined. The jurisprudence and schol­arship that emerge from the movement will end up looking more and more like Bostock—decisions, and roadmaps for decisions, that simp­ly take for granted the autonomy-centered metaphysics of modern capitalism.

Those opposed to this drift have limited recourse. To the extent that organizing philosophies like originalism and textualism remain central to the movement, it may be necessary for critics of the status quo to develop more “postmodern” iterations that take seriously the role of what Stanley Fish famously termed “interpretive communities.” On this view, in order to resist (inevitably) reading modern presuppositions into the past, judges must seek—however they can—to reconstruct and engage the comprehensive thought-worlds of the authors of legal texts.41 And no matter how much Bork or his intel­lectual heirs might have been scandalized by the thought, fundamental questions of Weltanschauung will rear their heads in that process.

It is far from clear whether such a proposal could ever take root within a movement that, since its inception, has vied to justify itself on liberalism’s “neutral” terms, but there may be no other option. After all, more traditionally minded legal conservatives have nowhere else to go.

Robert Bork’s America

In the wake of the Bostock decision, Senator Josh Hawley took to the Senate floor to deliver a searing indictment of the decision, along with a dire warning for the movement that had (ostensibly) elevated five justices to the Supreme Court:

This decision, and the majority who wrote it, represents the end of something. It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this deci­sion, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all.

And if those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for origin­alism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much. Or maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for.42

Maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for. It is difficult to imagine a phrase that better encapsulates the paradoxes embedded throughout Robert Bork’s intellectual career, and throughout the movement his work helped birth. A philosophy of antitrust law intended to rein in activist judges has empowered multinational tech­nology corporations to crush rivals, censor speech on an unprecedented scale, and even blackmail uncooperative governments. An interpretive methodology intended to force judges to prioritize text over theory has, ultimately, simply ensured that background assumptions about method and meaning remain out of judicial view, allowing judges to read modern norms backward into the past.

It would be unfair, of course, to lay all the blame for the movement’s present woes at Bork’s feet. Bork was not the only member of the “Chicago School” of antitrust theory focused principally on con­sumer welfare, nor was he the only jurist to articulate and defend versions of originalism and textualism on judicial-restraint grounds. Still, it is challenging to imagine another single figure who played such a central role in the movement’s history—and suffered greatly for it—whose intellectual project so paradoxically rebounded on itself, calcifying the dominance of the very liberal order he came to disdain so much.

Ted Kennedy’s grim prophecy, as it were, never came to pass. Bork never donned a black robe at One First Street or inaugurated a campaign of revanchist jurisprudence. The deconstruction of Ameri­can liberalism never occurred—quite the opposite, as it happened. But Kennedy was wrong about the most important thing: in 2021, just under 330 million citizens are currently residing in Robert Bork’s America. They simply don’t realize it.

This article originally appeared in American Affairs Volume V, Number 3 (Fall 2021): 86–98.

Notes
1 133 Cong. Rec. 18519 (1987).

2 Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting).

3 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992).

4 Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), 12.

5 Mollie Hemingway and Carrie Severino, Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court (Washington, D.C.: Regnery, 2019), 152.

6 Confirmation Hearing on the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 62 (2010).

7 See Elena Kagan, “The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes,” Harvard Law School, November 25, 2015 (“we’re all textualists now”).

8 Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020).

9 Robert H. Bork, The Antitrust Paradox (McLean, Va.: Bork Publishing, 2021), 2, 6.

10 Bork, The Antitrust Paradox, 5.

11 Bork, The Antitrust Paradox, 71.

12 Bork, The Antitrust Paradox, 45.

13 Bork, The Antitrust Paradox, 41.

14 Bork, The Antitrust Paradox, 41.

15 Bork, The Antitrust Paradox, 40.

16 Amy Klobuchar, Antitrust: Taking On Corporate Power from the Gilded Age to the Digital Age (New York: Knopf Doubleday, 2021), 137.

17 Klobuchar, Antitrust, 138.

18 FTC v. Facebook, No. 20-3590 (D.D.C. 2021), slip op. 31–32.

19 To be sure, Bork himself argued vigorously that his efficiency-focused antitrust theory was rooted in the original purposes of Congress. See Bork, The Antitrust Paradox, 65–66. That historical claim, however, has been dissected at great length by subsequent scholars. See Robert H. Lande, “A Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice,” Fordham Law Review 81 (2013): 2354; Robert H. Lande, “Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged” Hastings Law Journal 34 (1982): 69–70; Klobuchar, Antitrust, 135.

20 See Matthew Stoller, Goliath: The 100-Year War Between Monopoly Power and Democracy (New York: Simon & Schuster, 2019), 248; Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (New York: Columbia Global Reports, 2018), 135.

21 Bork, The Tempting of America, 81.

22 Bork, The Tempting of America, 80.

23 Bork, The Tempting of America, 16.

24 Robert H. Bork, Slouching towards Gomorrah: Modern Liberalism and American Decline (New York: HarperCollins, 1996), 5.

25 Bork, Slouching towards Gomorrah, 3.

26 Bork, Slouching towards Gomorrah, 9.

27 Bork, Slouching towards Gomorrah, 110.

28 Bostock, 140 S. Ct. at 1753.

29 See Lawrence, 539 U.S. at 578.

30 Lawrence, 539 U.S. at 568 (“Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men.”).

31 Bork, The Tempting of America, 8.

32 See, e.g., Brief of 206 Businesses as Amici Curiae in Support of the Employees, Bostock v. Clayton County, Nos. 17-1618, 17-1623, 18-107 (U.S. July 3, 2019); Brief for Business Organizations as Amici Curiae in Support of the Employees, Bostock v. Clayton County, Nos. 17-1618, 17-1623, 18-107 (U.S. July 3, 2019); Brief of Women CEOs and Other C-Suite Executives as Amicae Curiae in Support of Petitioner Bostock and Respondents Zarda, Moore, and Stephens, Bostock v. Clayton County, Nos. 17-1618, 17-1623, 18-107 (U.S. July 3, 2019).

33 Carl R. Trueman, The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road to Sexual Revolution (Wheaton, Ill.: Crossway, 2020), 46.

34 Bork, Slouching towards Gomorrah, 61.

35 About Us,” Federalist Society, (accessed July 2, 2021).

36 Code of Conduct for United States Judges, Administrative Office of the U.S. Courts, March 12, 2019.

37 Exposure Draft—Committee on Codes of Conduct Advisory Opinion No. 117: Judges’ Involvement with the American Constitution Society, the Federalist Society, and the American Bar Association, Committee on Codes of Conduct of the Judicial Conference of the United States, January 2020.

38 Federal Judges, letter to Robert P. Deyling, Assistant General Counsel of the Administrative Office of the United States Courts, March 18, 2020.

39 Ken I. Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge: Cambridge University Press, 2019), 382–83.

40 Bork, The Antitrust Paradox, 71.

41 See, e.g., William S. Blatt, “Interpretive Communities: The Missing Element in Statutory Interpretation,” Northwestern University Law Review 95 (2001): 629–30.

42 Josh Hawley, “Was It All for This?: The Failure of the Conservative Legal Movement,” Public Discourse, June 16, 2020.


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