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Bork, Robert H. Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1 (1971)
Communication Law and Policy  (IF),  Pub Date : 2020-07-02, DOI: 10.1080/10811680.2020.1766877
Erik Ugland

To the extent that Judge Robert Bork lives on in the American consciousness, it is too often as a caricature. Many on the right lionize Bork as an ideological visionary, a cultural warrior, an archetypical Reagan Republican, the grand poohbah of judicial conservatism, and as the preeminent martyr in the partisan battle for control of the judiciary, which was fully joined in 1987 when Senate Democrats rejected – borked – his nomination to the Supreme Court of the United States. Many on the left, on the other hand, remember Bork as just another Beltway political figure – a Federalist Society ideologue (anti-civil rights, pro-business) whose court opinions were just a different species of judicial activism from the ones he lambasted. These are both imperfect characterizations, but the latter is more consequential, because it diminishes the serious contributions that Bork, who died in 2012 at age 84, made to legal theory. Even though he was the central figure in a sensational political drama and had a more public presence than most judges, Bork deserved to be taken seriously, particularly by non-conservatives, and that is still true today. Indeed, young First Amendment scholars would do well to start their academic journeys by grappling with Bork, because he presents, as well as anyone, two fundamental and enduring challenges that must be met: to articulate (or explicitly embrace) a theory to guide one’s interpretation of the Constitution, and, relatedly, to identify the central values that animate and serve to define the scope of the First Amendment.