If it pleases the court...

The Bork Bill, and an erotic history of SCOTUS

Welcome back to the This Day In Esoteric Political History newsletter. Each week, a member of our team (or a friend of the show) gathers together bits of America’s past and attempts to find a throughline that might add a little understanding to our current moment.

Please let us know what historical moments you find yourself thinking about over Election Week! We’ll discuss on a couple special episodes coming up.

Here’s what happened over the week ahead in American political history…

November 1

• 1765: The Stamp Act draws resistance from American colonists

• 1800: John Adams becomes the first President to live in the White House

• 1950: Two pro-independence militants from Puerto Rican attempt to assassinate President Harry Truman

November 2

• 1889: North and South Dakota become states

• 1920: In Ocoee, Fla., when local Black men and women attempted to vote, White mobs responded by burning a Black church and killing at least six people; some say the death toll was more like 60

• 1948: Harry Truman defeats Thomas Dewey in the Presidential Election

• 1977: Jimmy Carter signed legislation to raise the minimum wage to $3.35 ($17.43 in 2024 dollars)

• 2000: During the final days of campaigning, George W. Bush acknowledges that he was arrested for driving under the influence of alcohol in 1976

November 3

• 1936: Franklin Roosevelt wins the Presidential re-election in a landslide

• 1992: Bill Clinton defeats George H.W. Bush, the last incumbent to lose a presidential election before Donald Trump, in the Presidential election

November 4

• 1791: One of the biggest military victories by Native Americans comes in 'St. Clair's Defeat.'

• 1842: Struggling lawyer Abraham Lincoln marries Mary Todd, a Kentucky native, at her sister’s home in Springfield, Illinois

• 1924: Wyoming's Nellie Ross is elected as the country's first female governor

• 1992: Carol Moseley-Braun of Illinois is elected Senator, becoming the first Black woman elected to the Senate, the first African-American senator from the Democratic party, the first woman to defeat an incumbent senator in an election, and the first female senator from Illinois

• 2008: Barack Obama is elected President

November 5

• 1872: Susan B. Anthony tries to vote in her hometown of Rochester, New York. She would eventually be arrested and fined. (Now her home is a poll site)

  

• 1912: Woodrow Wilson beats William Taft and Theodore Roosevelt in the Presidential election

• 1940: President Franklin D. Roosevelt wins a third term in office

• 1980: Maryland’s 5th Congressional District has just re-elected Gladys Noon Spellman — despite the fact that she is in a coma from which she would never recover

• 1988: Ronald Reagan signs the “Bork bill” into law, making it illegal for “video tape service providers” to disclose rental information outside the ordinary course of business without consumer consent

November 6

• 1860: Abraham Lincoln is elected President

• 1861: Jefferson Davis is elected Confederate president

• 1986: President Ronald Reagan signs the Immigration Reform and Control Act into law, making it illegal to knowingly hire illegal immigrants while legalizing those who arrived in the country prior to Jan. 1, 1984

• 2009: Unemployment hits 10.2 percent, reaching double digits for the first time in 26 years

In which we take the above collection of events and find themes, throughlines, rabbit holes and more. This week it’s Nicole Hemmer’s turn at the typewriter.

This week, in 1988, Ronald Reagan signed into law the Bork Bill, which made it a fineable offense to disclose video rental history without the consent of the renter. The legislation came after the failed nomination of Robert Bork, a hard-right judge who faced tense hearings over his suitability for the Supreme Court. Bork had played a pivotal role in the Watergate coverup, firing the special prosecutor assigned to investigate President Richard Nixon after two other members of the Justice Department had refused. And he also seemed poised to roll back civil rights for Black, women, and LGBTQ Americans. 

During his trial, a journalist got his hands on a fascinating piece of information: Bork’s video rental history. (For our younger newsletter readers: people used to go to stores and rent VHS tapes if they wanted to watch a movie at home. Renters had to have memberships with the stores, which recorded their rental history in case a tape ever went missing.) An enterprising reporter got his hands on Bork’s rental record during the nomination process and published a piece called “The Bork Tapes,” arguing he had found the key to understanding how Bork’s mind worked. 

The list was actually not that exciting. But when the reporter ended his column with a promise to explore the rental histories of other politicians…well, Congress hopped into action. Thus, the Bork Bill.

Another Supreme Court nomination helped make clear why Congress was so eager to pass the bill. The nomination hearings of Clarence Thomas are most famous for the testimony of Anita Hill, an attorney who detailed extensive sexual harassment during her years working for Thomas. The Senate nonetheless approved his nomination, and shortly after he was sworn in, three Washington Post reporters got their hands on Thomas’s video rental record that showed a long history of porn video rentals that seemed to align with Hill’s testimony. With Thomas already sworn in, the Post sat on the story, which was later reported by reporters Jane Mayer and Jill Abramson.

Porn viewing has a longer history on the Court than just those few years. In 1968, the fight over Abe Fortas’s nomination to Chief Justice grew heated. Desperate to stop Fortas’s nomination, Republican Strom Thurmond zeroed in on one issue: pornography. Fortas had been part of a 5-4 majority that allowed film exhibitors to show fully nude men and women on screen. So Thurmond collected some of the most explicit pornography he could find and started screening it for other senators, purportedly to show the kind of material that would circulate if Fortas became Chief Justice. An aide to Richard Nixon, who was then running for president, dubbed it “The Fortas Film Festival.” 

Fortas’s nomination failed a few weeks later. 

Nor was that the only time people watched porn on behalf of the Supreme Court. In his 2015 book, A Time for Truth, Republican Senator Ted Cruz offered up this story from his time clerking for Chief Justice William Rehnquist. As they considered a case about online pornography, court librarians offered a tutorial to the elderly Justices on accessing pornography on the internet. With Cruz, Rehnquist, and Justice Sandra Day O’Connor in the room, a court librarian did a quick search. Cruz recalled, “A slew of hard-core, explicit images showed up onscreen. As we watched these graphic pictures fill our screens, wide-eyed, no one said a word. Except for Justice O'Connor, who lowered her head, squinted slightly, and muttered, 'Oh, my.'"

“Oh, my” seems like the right note to end on.

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A little more esoterica

• We hope you all had a happy Halloween! Here are a few pics of our gang. Let us know what you went as (bonus points for political esoterica references)!

  

• In case you missed it, a bunch of Democratic Governors put on some fantastic Tim Walz costumes for the occasion.

• If you’re feeling stressed over how messy next week could get (we get it!), it might be worth taking a look back at how much of a sh*tshow the first American Presidential election was.

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