Ruth Bader Ginsburg and Robert Bork: Judicial Activist Twins
Recently, I heard a conversation on the radio between Justice Ruth Bader Ginsburg and one of her many admirers. It was the same evening she was schedule to appear before an audience of thousands at a stadium in Little Rock, Arkansas. I was struck by the cloying and self-congratulatory pronouncements by both of the participants, and asked myself whether any of the more noted jurists of the past would have ever participated in such an exercise.
Vanity and fame tempt everyone, but it’s impossible to visualize Justices Holmes, Brandeis, or Cardozo, or in a later day Justices Frankfurter, Black, or Jackson, engaging in such an spectacle. It is true that Judge Learned Hand in 1944 addressed the largest patriotic gathering ever assembled in the United States. But his remarks on that occasion were neither autobiographical nor self-referential. As he said, “The spirit of liberty is the spirit which is not too sure that it is right…the spirit which seeks to understand the minds of other men and women…which weighs their interests alongside its own without bias.”
In our era, there have arisen two terrible simplifiers in our law.
The first has been Justice Ginsburg, with her proposition that all gender distinctions in our law are presumptively unconstitutional, and that the courts appropriately exercise sovereignty over state moral and social legislation. Asked about the main currents of law in her time, Ginsburg pointed to “equality” as the governing principle. But “equality” appears nowhere in the Constitution she was sworn to uphold, and “equal protection” was designed to eliminate disabilities before courts, not to mandate social and economic reconstruction. The Supreme Court was quick to deny, for example, that the women’s suffrage amendment extended beyond voting rights. And the social reformers of the suffragette era, including Mary Ellen Richmond and the young Eleanor Roosevelt, opposed the Equal Rights Amendment, which has never secured ratification but which, as Justice Ginsburg has conceded, has been all but adopted by the Supreme Court.
The fruits of this adoption have been of benefit to professional and political women, the would-be crashers of “glass ceilings.” But less visible women, the supermarket clerks and bank tellers, have not benefitted from such doctrinaire feminist priorities as the abolition of the maternal preference rule in child custody cases, the demise of permanent alimony, or even the liberalization of abortion laws. As George Akerlof and Janet Yellen have shown, that latter policy has reduced sexual responsibility in both genders and led to an explosion of out-of-wedlock births and the “feminization of poverty.”
Ginsburg’s activism has not been confined to family law. It extends also to religion, as shown by her dissent in the establishment clause voucher case that upheld a neutrality principle and her dilution of the neutrality doctrine of the Rosenberger case in the later Christian Legal Society case. “Men do not gather figs from thistles,” as Judge Learned Hand put it, “nor supple institutions from judges whose outlook is limited by parish or class.” The fruit of judicial activism has been, as he predicted, the polarization of politics.
The second simplifier was Judge Robert Bork, not because of his urging of restraint in constitutional cases, but because of his advocacy of “consumer welfare” as the sole touchstone in construing antitrust and other economic law. His view of the Sherman Act, the first federal law that outlawed monopolistic business practices, has been refuted by many scholarly studies, including that of Hans Thorelli. It is only necessary to recall that one of its framers, and the bringer of early cases under it, was William Howard Taft as solicitor general in the Benjamin Harrison administration. Taft, the most energetic of presidential trust-busters, was concerned about private government, not merely economic inefficiency. He favored the tightening of the rule against perpetuities, opposed federal incorporation of philanthropic foundations because of their perpetual life, and introduced the corporate income tax.
The acceptance of Bork’s economic theory has meant the virtual demise of antitrust enforcement. The process of antitrust litigation has become a highly expensive and protracted war of doctrinaire economists, in which per se rules of behavior have disappeared and in which the process has given rise to substantially nonexistent results. Edward Levi’s reminders that the Constitution does not provide for a dictatorship of economists and that fashionable economic doctrines have often been mutable did not find subsequent favor. Instead, the views of his doctrinaire co-teacher at the University of Chicago, the late Aaron Director, have prevailed, along with those of his sometimes over-clever disciples Richard Posner and Richard Epstein. To the protest of Robert Ellickson that sociological and psychological factors should be considered in reaching economic conclusions, Posner rejoined that this would “stop the analytic engine in its tracks.” This would not have been said by Adam Smith, let alone Sir Alfred Marshall.
The impact of Bork’s doctrine on the law has not been limited to the Sherman Act. It has led the courts to vitiate a whole galaxy of legislative efforts to protect the interests of small businesses, independent professionals, and labor unions. Among the statutes that have fallen victim to a “harmonization” with the supposed purposes of the Sherman Act are the Celler-Kefauver merger statute, the Bank Merger Act, the Robinson-Patman Act, the Miller-Tydings and Maguire Acts, and the state fair trade laws. Similar “free market” activism under the guise of statutory construction yielded the demise of state usury laws in the Marquette National Bank case in 1978, the rise of professional advertising, and even impairment of state control of alcoholic beverage sales intended to be conferred by the 21st Amendment.
Justice Ginsburg’s style of liberal constitutional activism has thus found its twin in “conservative” statutory activism. The result has been extreme political controversy, as well as a depreciation of all institutions—the family, churches, small business, academic and professional autonomy, state and local government—other than the national state and the very largest private entities with their proletarianized and non-unionized work forces. Few of today’s fashionable “free marketeers” share Justice Brandeis’ conviction that “only through participation by the many in the responsibilities and determinations of business can Americans secure the moral and intellectual development which is essential to the maintenance of liberty.”
Ours is an era that has politically regressed to Peter Drucker’s 1995 description of “the 1930s and 1940s,” which, he says,
did not believe in conflict resolution but in unconditional surrender. Society was dominated and permeated in fact by a profound belief in class war, in which the very attempt to understand what was important to the other side was a sell-out. …The center of thought in politics and economics increasingly shifted to the question of how to make government more controlling, bigger and more powerful. For 40 years, all countries, the totalitarians in the vanguard, the rest following–believed in the mega-state. …Citizens existed only as a rhetorical flourish.
These somber reflections are not only a reaction to the Age of Trump. Eighteen years ago, I concluded a book of biographical sketches as follows:
The six shared one other attribute, important to us today. None of them were materialists. The failure of Marxism,”the God that failed” as Kenneth Clark and others has noted, has inspired no replacement save for “an unheroic materialism” or more accurately, consumerism. This will not satisfy people in hard times; it certainly will not satisfy the young. Our subjects did not conceive of society as an egalitarian feedlot, nor did they regard individual accumulation as the chief end of man, though they did not despise the profit motive and were at least moderately orthodox in their economics. Their focus was on the workplace and the polis; on providing individuals with satisfying social roles and a deepened conception of citizenship. These purposes should be at the center of politics in our time.
George Liebmann, a Baltimore lawyer, is the author of numerous works on law and history, most recently America’s Political Inventors: The Lost Art of Legislation (Bloomsbury, 2019).