From Bork to Bruen: A Constitutional Renaissance on the Supreme Court

Bad news sells, and if it bleeds, it leads.  

That’s why it’s important to occasionally step back and reflect upon positive trends and events in our lives and societally.  

In that vein, as someone old enough to recall the disgraceful denial of a Supreme Court seat to Robert Bork and maddening refusals by Republican-nominated justices to act in a strict constructionist manner, conservatives and libertarians can survey the remarkable change and progress brought on by years of Supreme Court course-correction and intensified efforts to confirm federal judges and Supreme Court justices. 

A time traveler from 1987, when Bork was denied, would be amazed.

That hypothetical time traveler would arrive in today’s America to discover a Supreme Court increasingly committed to interpreting the Constitution according to its original meaning, rather than as a vehicle for judges to impose their own policy preferences.  After decades in which constitutional limits seemed optional, and administrative agencies accumulated power at the expense of elected representatives, the judicial branch finally began restoring fundamental constitutional principles.  

The transformation is particularly striking in three critical areas: protection of Second Amendment rights, restoration of equal treatment under the law regardless of race, and reining in the unchecked growth of the federal administrative state.  

Consider first the Second Amendment.  For much of modern American history, the individual right to keep and bear Arms existed in theory but not practice.  Courts ignored enforcement of the Second Amendment as a second-class constitutional guarantee, while academics insisted it protected only a collective state militia right rather than an individual one.  

That changed dramatically with the Supreme Court’s landmark decision in District of Columbia v. Heller (2008).  

The late Justice Antonin Scalia conducted a careful textual and historical analysis, and concluded what the Founders intended: The Second Amendment protects an individual right to possess firearms for lawful purposes such as self-defense.  Subsequent rulings applied that protection against state and local governments, and rejected “balancing tests” that had allowed judges to dilute Second Amendment rights.  In so doing, the Court restored the Second Amendment to the same constitutional footing as other enumerated rights.  

Elsewhere, the Supreme Court finally confronted racial discrimination masquerading as “affirmative action.”  For decades, colleges, government and employers openly imposed racial preferences that judged applicants not as individuals, but as members of arbitrarily favored or disfavored racial groups.  

Progress in eroding those discriminatory practices under Chief Justice John Roberts reached a peak in 2023 in Students for Fair Admissions v. Harvard and its companion case involving the University of North Carolina.  The Court finally held that race-based admissions policies violate the Equal Protection Clause and can’t be reconciled with the Constitution’s promise of equal treatment under the law.  

That constitutional correction now extends beyond higher education. 

Specifically, the Trump Administration’s Office of Legal Counsel has recently issued guidance emphasizing that many Diversity, Equity, and Inclusion (DEI) programs violate federal civil rights laws when they distribute benefits, opportunities or burdens on the basis of race.  Whether in college admissions, hiring, promotions or contracting, the constitutional and statutory command remains the same: equal treatment means equal treatment.  

Recently, the Supreme Court has also restored constitutional limits on the modern administrative state.  

For generations, Congress and courts increasingly delegated policymaking authority to unelected bureaucracies, while federal agencies claimed sweeping powers over nearly every aspect of American life.  

In recent years, the Supreme Court with a six-to-three conservative majority reversed that trend.  

In West Virginia v. EPA (2022), the Court held that agencies cannot discover sweeping new powers in vague statutory language, and in Loper Bright Enterprises v. Raimondo (2024), the Court overruled Chevron v. NRDC (1984) and ended decades of judicial deference requiring courts to accept agency interpretations of ambiguous statutes.  

Together, these rulings reflect a broad restoration of constitutional government.  They reaffirm that rights like the Second Amendment in the Constitution actually mean what they say, and that Americans are individuals rather than racial categories.  And they reaffirm that lawmaking authority belongs to elected representatives rather than unelected regulators.  

None of that happened by accident. 

Rather, it occurred through decades of work by constitutional scholars, legal advocates, elected officials and citizens who understood the importance of strict constructionist principles in the judicial branch.  

Which brings us back to Robert Bork.  

His nomination battle in 1987 was one of the most shameful episodes in modern Senate history, launching an era in which constitutional originalism was caricatured and demonized.  Many of the principles Bork championed, however, have steadily gained acceptance within the judiciary.  

While Bork never took a seat on the Supreme Court, the jurisprudential movement that he helped inspire ultimately prevailed.  

After decades of frustration, constitutional government regained momentum.  Our work remains perpetually unfinished, but the progress is undeniable.  And for Americans who believe that the Constitution means what it says, that merits celebration as the nation approaches its 250th birthday.

Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom.

Reprinted with permission from cfif.org by Timothy H. Lee.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.