A Long and Winding Odyssey

In the summer of 1962, Robert Heron Bork, then 35, resigned his $40,000-a-year junior partnership in Chicago’s largest law firm, loaded his wife and three small children into their Chevrolet convertible and drove east to a $15,000 job teaching law at Yale. Although some of his partners were shocked, his intimates understood. “He told me he didn’t want to spend his life practicing law and cash in at the end, leaving nothing but a trail of depositions, briefs and money,” recalls Economist John McGee, a friend from those Chicago days. “He wanted to leave something enduring.”

The move committed Bork to the world of ideas — “trying to figure things out,” as he puts it — and launched him on an intellectual odyssey that has led him from socialism to libertarianism to iconoclastic conservatism. Along the way he has demonstrated a willingness to mobilize overstatement to back up tentative thoughts that defy the prevailing wisdom. “Departing from conventional views of the time is the only way to evidence intellectual interest,” says Aaron Director, a longtime University of Chicago free-market economist and an early Bork mentor. “He’s always believed in advancing ideas forcefully and having them tested and criticized.”

Even as a child, Bork delighted in running counter to the grain. He became a popular but bookish teenager who mystified his friends in the solidly Republican town of Ben Avon, a Pittsburgh suburb, by declaring himself a socialist. His father, a purchasing agent for a steel company, and his mother, a teacher, both thought the flirtation with socialism was crazy. “I read The Coming Struggle for Power, a Marxist analysis of capitalism by John Strachey,” he recalled later. “It was powerful stuff and I thought it was probably true.”

Sent to the exclusive Hotchkiss School in Connecticut for his senior year in high school, Bork took to intramural boxing and won the school championship as a 147-pounder. By his picture in the yearbook is a fitting quote for a pugilist: “Do you want a contusious scab, maybe?”

When Bork graduated in 1944, his parents refused him permission to enlist in the Marines. Bork retaliated by promising to volunteer as a paratrooper if he had to await the Army draft. His parents relented, but the war ended before he got out of Marine training camp.

On the advice of a high school teacher, Bork headed for the University of Chicago, which was bubbling with intellectual creativity under its young president, Robert Hutchins. The university encouraged independent thinking, and Bork flourished there. A Phi Beta Kappa, he was a poll watcher for a Chicago professor running for Vice President on the Socialist ticket.

Bork’s ambition was to follow Ernest Hemingway into newspaper reporting and book writing. But because Chicago had granted Bork a B.A. in less than two years, Columbia University refused to send him a journalism school application. So he turned instead to Chicago’s law school. The first classroom professor he encountered there was Edward Levi, an antitrust scholar who later became Attorney General and Bork’s boss under Gerald Ford. “He was the most fantastic teacher I ever knew,” Bork says. “He took the big ideas in the law and played with them, always by indirection.” Levi’s technique was to prove abrasively why more obvious explanations were wrong, an approach Bork adopted.

After two years, as other successful classmates were preparing to look for lucrative law-firm jobs, Bork unexpectedly went in the opposite direction. He re-enlisted in the Marines, this time as an officer, and trained as a tank commander. “I liked the discipline of the Marines, and though it may sound corny, I thought you should serve.” He returned for his final year of law school in 1952. By that point he had made the first significant change in his political outlook: he considered himself no longer a socialist but a New Deal liberal. He distributed leaflets for Democrat Adlai Stevenson that year.

His next move to the right was far more dramatic. When he signed up for Levi’s antitrust course, he found it was being co-taught by the Polish-born economist Aaron Director, a fervent opponent of Government interference in the marketplace. Director became the catalyst for what Bork has called a “religious conversion” to free-market, libertarian principles. For four days each week, Levi would explain the legal rationale for various antitrust decisions; then, on Fridays, Director would explain “that everything Levi had told us was nonsense,” recalls UCLA Professor Wesley Liebeler, who also took the course. By using economic analysis, Director argued that the Government’s antitrust policies did the exact opposite of their goal: they made markets less efficient and harmed consumers.

Bork became a self-proclaimed “janissary” to Director, a loyal soldier who became a fellow in Chicago’s “law and economics” program, a bastion of probusiness research. With Director’s coaching, Bork produced a scholarly paper debunking the supposed dangers of “vertical integration,” in which companies buy up suppliers elsewhere in the production chain. “We determined that the practice wasn’t monopolistic, as popularly believed then,” Director recalls, “but merely more efficient.” The article won Bork widespread notice, and later gained acceptance by conservative antitrust scholars and judges.

While a law student, Bork, a Protestant, met and courted a Chicago undergraduate named Claire Davidson, daughter of a New York Jewish family. Their subsequent marriage produced three children and a partnership of uncommon unity. Friends recall Claire as her husband’s alter ego, his sounding board on virtually every matter, intellectual and practical. They once stayed up all night talking about antitrust theory. They spent many late nights discussing his desire to explore his libertarian ideas further, to test free- market theory against social issues far removed from the economy. It was with Claire’s backing that Bork finally packed the Chevrolet to take an untenured position teaching antitrust law at Yale.

In New Haven, Bork struck up an odd-couple friendship with Alexander Bickel, perhaps the country’s foremost constitutional scholar. Casting about for a second course to teach, Bork acted on Claire’s advice and picked the “most exciting, dynamic and intellectual field,” constitutional law. Bickel dropped in on Bork one day, and the two held an impromptu debate in front of a vastly amused class. That led to perhaps the most popular offering at Yale Law in the 1960s, a constitutional-theory seminar that the two men jointly taught in good-natured combative fashion.

Bork’s publication of his theories sowed the first seeds of his current trouble. Writing in popular journals, starting with the New Republic in 1963, Bork attacked the proposed Public Accommodations Act, a civil rights measure, as an unconstitutional infringement of the right to free association. In 1968, at the culmination of his libertarian phase, he wrote a FORTUNE article advocating judicial protection for a variety of liberties, including privacy, not specifically mentioned in the Constitution.

His views on privacy and other libertarian ideals soon changed radically, – when Bork realized that his ideological outlook had taken another turn. After a year’s sabbatical in England with his family, he returned to Yale in 1969 to find that his once lively seminar with Bickel had “gone flat.” Recalls Bork: “When I asked him why, Bickel explained, ‘It’s because you’re not saying those crazy things anymore.’ I suddenly realized I’d basically adopted his position.” He abandoned his belief that constitutional law could be made to conform to rigid ideological or economic principles. “I gave up trying to find bright lines. They’re just not available.”

The revelation eventually resulted in Bork’s famous 1971 Indiana Law Journal article repudiating his prior attempts to find unwritten protections in the Constitution. In its place was Bork’s version of what academics call interpretivism, or intentionalism. Unless the Constitution clearly specifies the protection of a core value, Bork wrote, “there is no principled way to prefer any claimed human value to any other.” Only the “original intent” of the Constitution’s framers should be used by judges in finding constitutionally protected values, he declared.

With typically provocative rhetoric, Bork used the article to single out a number of decisions as “unprincipled.” Among them: the 1965 Supreme Court ruling that enunciated the right to privacy in overturning a Connecticut ban on contraceptives, and the Warren Court’s series of one-man, one-vote pronouncements. Bork has never backed down from criticizing the privacy decision, a forerunner of the 1973 Roe v. Wade abortion ruling. But he found it necessary, under heavy scholarly criticism, to back away from another assertion in the 1971 article, that only “political speech” is protected under the First Amendment.

When Bork was appointed by Richard Nixon as Solicitor General in 1973, the Indiana Law Review article prompted widespread fears that the office was about to be hopelessly politicized. After only five weeks on the job, he was called to the White House by Nixon Aide Alexander Haig and asked to run the President’s Watergate defense. After some indecision, Bork ultimately maneuvered his way out, in part because Nixon refused to let him listen to the White House tapes. Three months later came the Saturday Night Massacre. Bork’s name became a household word overnight when, as acting Attorney General, he fired Watergate Prosecutor Archibald Cox after Attorney General Elliot Richardson and his deputy, William Ruckelshaus, refused to do so. At his judicial confirmation hearings nine years later, Bork said he acted to prevent chaos at the Justice Department and moved quickly to assure continuation of the independent probe. That seemed to settle the matter. But in recent weeks, some Massacre witnesses have quarreled with portions of his sworn story and suggested Bork was in fact acting to help Nixon defy a lawful court order for his tapes.

Ironically, the remainder of Bork’s four-year tenure at Justice could prove his biggest asset. Career and political appointees alike credit Bork with helping to restore morale at the shaken department. Despite antibusing sentiment in both the Nixon and Ford administrations, for example, Bork pointedly refused to oppose a controversial Boston school-desegregation order. “He was the epitome of an open-minded, principled lawyer,” says A. Raymond Randolph, then a Bork aide, “the exact opposite of a rigid ideologue.”

When President Ford was defeated, Bork briefly considered a Washington law practice but ultimately decided to return to Yale. The move was a financial success, but unsatisfying nonetheless. He published his book, The Antitrust Paradox, ten years in the making, debunking the antitrust notion that bigness was badness in corporate America. Businessmen flocked to his New Haven office, willing to pay $250 an hour for his counsel on antitrust and Justice Department matters. His income soared into six figures, and he quickly paid off a small debt left over from his children’s schooling and began to build his net worth.

But his law school relationships had soured. Bickel had died while Bork was in Washington. Professors muttered that Bork’s onetime freewheeling search for intellectual theories had been replaced by commercial pursuits. Bork, who usually stayed above academic politics, became involved in a losing 1978 campaign against a proposal to forbid law firms that discriminated against homosexuals from recruiting at Yale. “Contrary to assertions made, homosexuality is obviously not an unchangeable condition like race or gender,” he wrote.

His outlook was obviously affected by his wife’s deteriorating health. In early 1971, surgeons had operated on Claire Bork, then only 41, and pronounced her hopelessly ill with cancer. They told Bork she had only six months to live and urged him to withhold the news from her. Instead, the Borks retained new doctors and Claire began a prolonged campaign to beat the disease through operations and chemotherapy. Though she was in remission for much of a decade, the battle finally ended in 1980 when the cancer reached her lungs. “She was determined to fight it until her children were grown and her job was done,” says her eldest son, Robert Jr. Her death devastated Bork. “Their marriage was more than a partnership. She was an integral part of his personality,” says the younger Bork. “Without her he was a colder, unhappy person.” Alone in his big New Haven house with his memories, Bork decided in 1981 on a major change, a return to Washington and corporate law practice.

Within months after Bork had acquired a $400,000-a-year partnership with his old Chicago firm and a $500,000 house, Attorney General William French Smith called offering Bork a spot on the D.C. Court of Appeals. The unspoken understanding was that a good performance would merit Bork top consideration for any Supreme Court vacancy.

As an appeals court judge, Bork got involved in a number of controversies. His disdain for the constitutional right to privacy was clear in a strongly worded Bork opinion ruling against a Navy enlistee discharged for homosexual conduct in the barracks. Bork was criticized by more liberal colleagues on the court for what they described as his result oriented tactics. In their view he bent legal principles to achieve the conservative outcome that he reached in almost every case.

For the most part, however, Bork found life on the D.C. Appeals Court, with its heavy diet of technical regulatory issues, unexciting. When his colleague and friend Antonin Scalia was named to fill a 1986 Supreme Court vacancy, Bork was gracious publicly but privately irritated, fearing that Reagan would leave office before another seat opened up. Last spring, shortly before he was nominated to replace Lewis Powell, Bork decided not to hire clerks for the 1988 term, opening the way for his resignation at the end of Reagan’s term.

In the meantime, Bork’s personal life had brightened. After a period of loneliness in Washington, he met and soon married Mary Ellen Pohl, a former Sacred Heart nun working for a conservative think tank. “He was raised a Protestant, married a Jew and then a Catholic,” notes Ward Bowman, a former Yale law professor. “It’s pretty hard to say he’s bigoted.” Not a member of a church, Bork describes himself as a “generic Protestant.”

For an advocate of judicial restraint, Bork has not been terribly successful at exercising personal discipline in recent years. He regularly smokes two packs of cigarettes a day, despite promises to himself to quit. After breaking his arm in an accident on icy steps outside his home two years ago, he began losing control of his now Falstaffian weight. A series of exercise machines — a rowing machine, cross-country machine, stationary bicycle — sit broken or largely unused in his attic. Bork has taken up poker in a floating game that regularly includes Scalia, Chief Justice William Rehnquist, Education Secretary William Bennett and others. Bork is a popular addition: he is so unknowledgeable about the game that he keeps a list of winning hands beside his chair. “I never played poker before,” says he, “and I think I’m paying for it.”

A jovial man whose company is enjoyed even by ideological foes, Bork amiably uses smiles and quips to soften his forcefully expressed views. After a Justice Department official commented that a certain decision would be made “over my dead body,” Bork noted, “To some of us, that sounded like the scenic route.” His disarming humor is likely to help him seem personally sympathetic and even comfortably moderate during the televised hearings. But the prolonged wait has taken its toll, and his irritation with the drum roll of criticism sometimes prompts him to grind his teeth nervously and show flashes of anger.

Bork has shown his independent streak even after his nomination. The afternoon that Reagan offered him the job, Bork was taken aside by William Ball, the White House legislative liaison, and told not to talk to the press. He nodded, but within hours was giving thoughtful interviews about his life and legal beliefs. He also disregarded advice not to talk to Senators about his legal philosophy. His strategy worked well, both to humanize his image and to explain his complex ideas. Even though he has successfully assured the Senate on two previous occasions that some of his forceful and abrasive writings were merely the deliberately provocative views of an inquiring intellectual, he knows that this time the stakes are higher. In considering whether he should become the nation’s 104th Supreme Court Justice — and determine the court’s future balance — the Senate should and will intimately review not only his current views but his entire personal odyssey.