judicial heresy, Bork, The Tempting of America


This Essay examines "The Tempting of America" in three stages: Section II briefly summarizes the major themes of the book along three principal lines that parallel the book's three parts: Bork's critique of the Supreme Court, his concept of correct and incorrect legal theory and his assessment of the treatment he received from the media and the Senate Judiciary Committee. Each of these topics deserves serious consideration, but the ultimate concern of this Essay is Bork's theoretical chapters, not his historical and political arguments. Section III examines problems that Bork's judicial philosophy raises from the perspectives of history, jurisprudence, and, most especially, the practice of viewing jurisprudence from alternative and competitive perspectives. The pervasive question in Section III is whether Bork is fully aware of these problems and whether he has adequately and fairly addressed them. Section IV attempts to relate Bork's judicial philosophy to the underlying purpose of "The Tempting of America" which explores "who we are and how we live." This section suggests a comparison between Bork's metaphor of "heresy" as diagnostic of current judicial problems and Ronald Dworkin's metaphor, "the protestant attitude," as characteristic of a healthy legal culture. Finally, this Essay requires, as Judge Bork does, the acceptance of the premise that the role of judges in our Republic is necessarily defined within the context of history, philosophy, and political theory, one larger than one is ordinarily able to consider as he praises or condemns the decisions of our courts.

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