Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
I had the good fortune to be asked recently to contribute to a memorial symposium on Judge Robert Bork’s work in the University of Chicago Law Review’s online forum. My essay (link no longer available) showed that he was a prime catalyst for both originalism and law and economics—two movements that push law back toward being once again an instrument of social well being. These dual, dynamic contributions made him the most important figure of the intellectual legal right in the latter half of the twentieth century. And his ideas could not be defeated by the Senate vote that denied him a seat on the Supreme Court.
In constitutional theory, he made a crucial first step toward originalism by arguing that neutral principles must be derived neutrally and thus from the text of the Constitution. As a result of these distinct enterprises, he was the most important legal scholar on the right in the last 50 years. These contributions were of substantially different kinds. In antitrust, he mapped an entire field. In constitutional law, he discovered or rediscovered a methodology but left it to others to reticulate and refine his insight. While some have suggested that his claim to being a great scholar rests only on his contribution to antitrust, this assessment is mistaken. The pathfinder can be as great as even the most expert surveyor. Both are crucial to the progress of any discipline.
The last point was also made well by Mike Rappaport in this very blog. I ended my essay with the argument that the long run impact of Judge Bork’s ideas may well outweigh the effect of the defeat of his nomination for the Supreme Court:
Antitrust law now goes by his book. While not yet triumphant, originalism is also on the march. In District of Columbia v Heller, the Court extensively inquired into the historical meaning of the Second Amendment to hold that possessing a handgun in the home was a constitutional right. A measure of the increasing prevalence of originalism was Justice Stevens’s dissent. He disagreed on the history, but accepted the originalist methodology. Law is about reasons, and Bork very substantially contributed to the reasons that justices can give in their opinions. . . . In the academy, originalism is also undergoing a revival. Originalism may be the most discussed idea in constitutional theory. And the discussion does not stop at the theoretical level. Many leading law reviews publish thoroughly researched historical analyses of specific provisions of the Constitution. This process of dissemination then becomes a transmission belt for moving the law toward the original meaning of the Constitution. . . Thus, while Judge Bork never became Justice Bork, his ideas still move the world, including the justices actually on the Court. That’s the essence of ideas. They can go around political barriers. They can be like a torrent of water that bears all before it. They can also seep more slowly into society, mixing with a substratum of ideas, like the rule of law already in the political soil, and forever changing it.