What Might Have Been: 25 Years of Robert Bork on the United States Supreme Court

This Article tries to briefly attempt an answer to what would have happened if Robert Bork had sat on the Supreme Court bench. Part I examines the backgrounds of Judge Bork and Justice Kennedy, and then studies some of the major cases decided by the Court in four key areas — abortion, freedom of speech, the right to bear arms, and civil rights — during the last twenty-five years. Part II then evaluates the voting record of Justice Kennedy in these cases, as well as the views held by Judge Bork — based on Bork’s own writings, on opinions that he rendered at the D.C. Circuit, and on commentaries written about him by other scholars — on these controversial topics. Part II also includes a discussion based on these records about how Judge Bork would likely have voted in these major cases, and analyzes how these cases would have turned out if Bork, not Kennedy, were sitting on the Supreme Court bench.

While this Article is too short to examine every major case to come before the Court in the last quarter-century, it provides at least a bird’s-eye view of many of the leading disputes to come before the Court in this time and looks at how Bork might have influenced the outcome — and, by extension, the country’s entire direction on these matters.