Reagan Appoints Robert Bork to DC Circuit Court of Appeals, Positioning Antitrust Revolution Author for Supreme Court

President Ronald Reagan appointed Robert Bork to the U.S. Court of Appeals for the District of Columbia Circuit on February 9, 1982, elevating the author of “The Antitrust Paradox” to the federal bench widely considered the nation’s second-most important court. Bork’s nomination had been submitted on December 7, 1981, and the Senate confirmed him on February 8, 1982, giving the conservative legal movement’s leading antitrust theorist a powerful judicial platform from which to implement his ideology of corporate deregulation and minimal antitrust enforcement. The appointment positioned Bork as a leading candidate for future Supreme Court nomination while immediately enabling him to shape federal law through appellate decisions.

Bork’s path to the DC Circuit reflected the conservative movement’s strategic approach to judicial appointments. After serving as Solicitor General under Presidents Nixon and Ford (1973-1977), Bork had returned to Yale Law School to teach and write. The 1978 publication of “The Antitrust Paradox” established him as the preeminent intellectual architect of the Chicago School approach to antitrust law, arguing that “consumer welfare” rather than prevention of concentrated economic power should be antitrust law’s sole concern. Within one year of publication, the Supreme Court had adopted Bork’s framework, demonstrating the effectiveness of conservative legal scholarship in reshaping doctrine.

When Democrat Jimmy Carter won the presidency in 1976, Bork left government service and focused on academic work and building conservative legal networks. He resigned from Yale in 1981 to enter private practice at Kirkland & Ellis, but this proved to be a brief transition before Reagan’s judicial appointment. Bork’s conservative credentials, scholarly reputation, and previous government service made him an ideal candidate for the Reagan administration’s project of reshaping the federal judiciary according to conservative legal principles.

The DC Circuit Court of Appeals holds particular importance in the federal judiciary because it hears the majority of cases challenging federal agency actions and regulatory decisions. Appellate judges on the DC Circuit review Environmental Protection Agency regulations, Federal Communications Commission rules, Securities and Exchange Commission enforcement actions, Federal Trade Commission antitrust cases, and decisions by every other federal regulatory agency. For the conservative movement’s deregulatory agenda, placing sympathetic judges on the DC Circuit was crucial because these judges would rule on challenges to Reagan administration efforts to roll back environmental, consumer protection, workplace safety, and antitrust regulations.

Bork’s appointment to the DC Circuit occurred during a broader Reagan administration transformation of antitrust enforcement. Reagan’s first term saw dramatic reductions in antitrust enforcement activity, with the Justice Department Antitrust Division and Federal Trade Commission bringing far fewer cases and challenging far fewer mergers than previous administrations. The administration embraced Bork’s consumer welfare standard as justification for approving mergers and practices that earlier administrations would have challenged. Having Bork on the DC Circuit ensured that if antitrust agencies or private plaintiffs did bring cases, they would face a judge predisposed to narrow interpretations of antitrust law.

During his five years on the DC Circuit (1982-1987), Bork authored numerous opinions implementing his conservative judicial philosophy. His approach to antitrust cases consistently favored permissive treatment of corporate consolidation and restrictive interpretations of antitrust statutes. His administrative law decisions generally favored deregulation and limited judicial review of agency inaction. His constitutional law opinions advanced originalist interpretations that would later become central to conservative judicial philosophy.

The DC Circuit appointment also connected Bork to the emerging Federalist Society network. The Federalist Society had been founded in 1982, the same year as Bork’s appointment, as an organization to connect conservative law students, lawyers, and judges. Bork became an influential figure within Federalist Society circles, speaking at events and helping to develop the originalist judicial philosophy that would define the organization’s approach to constitutional interpretation. The symbiotic relationship between Bork’s judicial service and the Federalist Society’s network-building helped establish the infrastructure for conservative judicial dominance.

Bork’s time on the DC Circuit served as an extended audition for Supreme Court appointment. The Reagan administration and conservative legal movement viewed the DC Circuit as a proving ground for potential Supreme Court justices—a place where conservative judges could build records demonstrating their commitment to conservative legal principles while handling the complex federal law issues that would come before the Supreme Court. When Justice Lewis Powell announced his retirement in 1987, Bork had established himself as the leading candidate for the conservative movement’s priorities: deregulation, antitrust abandonment, and originalist constitutional interpretation.

The DC Circuit position also gave Bork credibility when defending conservative legal positions in public discourse. As a sitting federal appellate judge rather than merely an academic or advocate, Bork could present conservative legal theories as respectable judicial philosophy rather than partisan ideology. This credibility proved valuable in media appearances, academic conferences, and policy debates where Bork advocated for reduced antitrust enforcement, deregulation, and originalist constitutional interpretation.

Bork’s judicial philosophy extended beyond antitrust to encompass a comprehensive conservative legal vision. He was skeptical of privacy rights not explicitly enumerated in the Constitution, critical of civil rights protections he viewed as judicial overreach, and dismissive of environmental regulations he considered excessive. This broad conservatism made him attractive to the Reagan administration and conservative movement as a judge who could be counted on to advance movement priorities across multiple legal domains.

The appointment demonstrated the Reagan administration’s commitment to fundamentally reshaping the federal judiciary. Rather than appointing moderate judges who might occasionally side with liberal positions, Reagan prioritized appointments of committed conservatives who would reliably advance conservative legal principles. Bork exemplified this approach: a judge with a clear ideological commitment to corporate deregulation, limited government, and originalist constitutional interpretation who could be counted on to rule accordingly.

Bork’s DC Circuit tenure also illustrated the long-term strategic vision of conservative judicial appointments. While Bork served only five years on the DC Circuit before being nominated to the Supreme Court, his opinions during this period influenced federal law and established precedents that would persist for decades. Moreover, Bork’s presence on the DC Circuit helped shift the court’s overall ideological balance, creating a more conservative appellate court that would produce more conservative precedents even after Bork’s eventual departure.

The appointment occurred within the broader context of conservative infrastructure development during Reagan’s first term. In 1982, the same year as Bork’s appointment, the Federalist Society was founded to create networks connecting conservative law students, lawyers, and judges. Heritage Foundation was producing policy blueprints for Reagan’s regulatory rollbacks. The American Legislative Exchange Council was developing model legislation for conservative state policies. Bork’s DC Circuit appointment represented the judicial component of this comprehensive conservative institutional development—building the legal infrastructure to implement and sustain conservative policy victories.

Bork’s failed 1987 Supreme Court nomination would ultimately end his judicial career, but his five years on the DC Circuit proved consequential for conservative legal movement development. His judicial record established him as the movement’s leading advocate for antitrust abandonment, corporate deregulation, and originalist constitutional interpretation. His mentorship of younger conservative lawyers helped build the talent pipeline that would eventually produce the conservative Supreme Court majority of the 2010s and 2020s. And his visibility as a sitting federal judge helped legitimize conservative legal theories that might otherwise have been dismissed as academic or partisan.