When judicial activists switched sides

But Bork’s supporters also had a point. Reagan and Dole were right: Bork was a principled advocate of judicial minimalism. He not only opposed what he saw as the Court’s liberal activism in Griswold and Roe but also rejected what he saw as the conservative activism of Lochner v. New York, the famous 1905 case in which the Supreme Court struck down a state restriction on economic liberty (over the dissent of Justice Holmes). Indeed, during his confirmation hearings, Bork took pains to remind his interrogators “that there was a time when the word liberty in the 14th Amendment was used by judges to strike down [Progressive] legislation.” Those conservative and libertarian judges, Bork argued, “were wrong because they were using a concept to reach results they liked, and the concept did not confine them, and they should not have been using that concept.”

It was a sentiment worthy of Justice Holmes himself. Yet not only did Bork’s ode to legal Progressivism fail to win him any additional Democratic supporters, it almost certainly helped doom his already troubled nomination, which eventually went down to defeat in the Senate by a vote of 58-42. That’s because American liberals had long ago abandoned the sort of all-encompassing judicial deference espoused by Oliver Wendell Holmes. Instead, modern progressives like Kennedy and Biden took their cues from a new breed of liberal jurist, best represented by figures such as Earl Warren and William O. Douglas. Those justices had led the mid-20th-century Supreme Court through what has been dubbed a “rights revolution,” a busy stretch during which government actions were overturned in the name of voting rights, privacy rights, and many other rights besides. Put differently, in the half century that fell between the presidencies of Franklin Roosevelt and Ronald Reagan, the American left had learned to stop worrying and love judicial activism.