The battle over the Supreme Court nomination of Robert Bork revealed to the public a grave development that legal scholars had been observing for some time: a breakdown in consensus on the most basic American legal principles. As contradictory testimony at the Bork hearings from respected scholars on both sides demonstrated, the breakdown is about the checks and balances that the Constitution sets out for the three federal branches; about the meaning of the contents of the Constitution; and about how to apply tools of legal reasoning to interpret those contents today. More than any other event of the Reagan years, the Bork hearings emphasized how that Administration’s approach to the law was the opposite of seeking consensus—how it sought to polarize American society. Though the Bork nomination was defeated, the problem of the breakdown in legal consensus has yet to be addressed.

One effect of the breakdown is that the law is now almost always spoken of popularly in terms of outcomes that are indistinguishable from political ends. Whether a judicial nominee opposes a cause like abortion or affirmative action is now considered a legal question. Studies asses judges in terms of the causes they back or oppose, and find, for example, that appointees of the Reagan and [George H. W.] Bush administrations are far more likely than appointees of the Carter Administration to oppose the claims of criminal defendants, of environmentalists, or of civil-rights advocates.

Legal thinkers have tried to rationalize controversial decisions in terms of judicial philosophy, but the failure of their ideas to win public understanding and approval has reinforced the impression that the ends of law and of politics are the same….

…. Congress, the President, and the Supreme Court need to forge a new legal consensus. The prospects that they will do so any time soon seem dim…. But if a new consensus is not reached, the law will increasingly become what cynical observers contend that it already is—just another tool of power.

— Lincoln Caplan, Comment, October 28, 1991