Judge Bork's Remarkable Adherence to Unremarkable Principles of National Security Law

Abstract

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox and The Tempting of America, are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese, Persinger v. Islamic Republic of Iran, Finzer v. Barry, and Tel-Oren v. Libyan Arab Republic. In these cases, Judge Bork identified and followed nine very traditional principles of law concerning national security and foreign relations. These principles were so clear and well-established that at the time they seemed unremarkable. Indeed, while scrutinizing nearly every other aspect of Judge Bork’s records, proponents and opponents of his nomination to the Supreme Court said very little about his opinions in these cases. How Judge Bork addressed the law in the area of national security and U.S. foreign relations is a subject that deserves a fresh look in light of important Supreme Court litigation arising out of the War on Terror. In a series of cases, often decided by the narrowest of margins, Justices of the Supreme Court have effectively rejected each of the nine traditional principles that Judge Bork applied in his D.C. Circuit opinions. Contrasting the Supreme Court’s controversial decisions in these cases to Judge Bork’s very different and more restrained approach reveals another aspect of what was lost when the Senate failed to confirm Judge Bork’s nomination to the Supreme Court in 1987.