Robert Bork’s America
Less than one hour after Ronald Reagan nominated Robert Bork to the United States Supreme Court in 1987, Senator Ted Kennedy took the Senate floor and voiced his dissent.
The opposition, swift and fierce, was no surprise. After Associate Justice Lewis Powell had announced his retirement the previous month, congressional Democrats told the president they would form a “solid phalanx” of resistance against any replacement they deemed an “ideological extremist.” As a leader in the conservative legal movement and a prominent proponent of originalism—a judicial philosophy that interprets the Constitution according to the original intent of the Framers—Bork, in the minds of Democratic leadership, was an extremist indeed.
And so, after condemning Bork for his role as acting attorney general in Watergate’s so-called Saturday Night Massacre, Kennedy painted a picture of what America would look like if Bork was successfully confirmed:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Kennedy’s speech was the first strike in what was thus far the most contentious nomination process in the history of the Supreme Court. Joe Biden, then chairman of the Senate Judiciary Committee, helped lead the charge with special interest groups such as the NAACP, the ACLU, and the National Organization for Women following close behind. Denouncing his “outside the mainstream” judicial philosophy and condemning his “retrograde” views on gender, race, and sexuality, the opposition worked tirelessly to discredit Bork in the court of public opinion.
The countervailing effort proved successful. In a 42-58 vote along mostly partisan lines, Bork’s nomination was squashed in the Senate by what Reagan called a “lynch mob” and a “campaign of political pressure.”
Thus, the Bork-infused America, as conjured up in the pointed rhetoric of Kennedy, never came to pass. Indeed, since his confirmation hearings in 1987, the progressive left has continued to make substantial gains both culturally and politically, with Powell’s eventual replacement—Anthony Kennedy, confirmed by a vote of 97-0 the following year—effectively deciding cases that upheld the legality of abortion and legalized same-sex marriage.
Yet while he never had the opportunity to shape U.S. jurisprudence from a seat on the high court, we nonetheless today live in Robert Bork’s America. To understand why, you have to examine, of all things, the history of American antitrust law.
While the origins of America’s antitrust (or anti-monopoly) tradition can be traced back to the American founding, the legal movement really began in 1890 with the passage of the Sherman Antitrust Act. Codified when oil barons and railroad tycoons still dominated the economic landscape, the law was enacted with the aim of protecting market participants from the anti-competitive practices of Gilded Age monopolists. Later fortified by the Clayton Antitrust Act of 1914 and the Robinson-Patman Act of 1936, these laws attempted to foster an economic environment in which small businessmen, farmers, and shopkeepers could flourish without fear of being crushed by larger competitors.
Tasked with the objective of promoting competition, the Department of Justice, the Federal Trade Commission, and the Supreme Court actively exercised their prerogative and routinely blocked—with bipartisan support—both horizontal and vertical mergers that they believed would result in anti-competitive market structures.
To get a sense of just how rigorous the government was in enforcing its antitrust laws, the 1962 Supreme Court case of Brown Shoe Co., Inc. v. United States is instructive. In it, the Court blocked a merger that would have given one distributor a mere 2 percent (!) share of the national market for shoes. Chief Justice Earl Warren, writing the majority opinion, explained that the ruling reflected Congress’s long-standing desire to limit how much market power a single participant could amass. Warren wrote:
We cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small, locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.
Then came Robert Bork. As a graduate of the University of Chicago’s Law and Economics program, Bork was steeped in the laissez-faire ideology of libertarian luminaries such as Milton Friedman. Since antitrust laws gave government broad discretion in shaping the structure of the political economy, he believed the legislation was tantamount to blasphemy.
Bork expressed his disgust in The Antitrust Paradox, a book published 40 years ago in 1978. Contra the letter and intent of decades of antitrust legislation and rulings, Bork asserted that the “only legitimate goal of antitrust is the maximization of consumer welfare.” For Bork, “consumer welfare” was measured primarily according to the metric of “price,” meaning that reductions in price ought to be considered a highly desirable outcome. For this reason, Bork claimed that mergers should be encouraged (rather than discouraged) since large businesses could exploit economies of scale, increase efficiency, and deliver cheaper consumer goods to the market.
Bork’s thesis had a revolutionary impact. Not confined to the ivory towers of the academy, it found immediate purchase in the corridors of power. In a case decided only one year after its publication, the Supreme Court cited The Antitrust Paradox and repeated Bork’s counterfactual interpretation of antitrust law, writing that “Congress designed the Sherman Act as a consumer welfare prescription.”
Antitrust laws were further neutralized when, in 1984, the Department of Justice’s Antitrust Division released new “Merger Guidelines” that reflected Bork’s “consumer welfare” standard. Whereas the 1968 “Guidelines” asserted that the DOJ’s objective was to “preserve and promote market structures conducive to competition,” the iteration published in 1984 elevates “price” and “efficiency” as sacrosanct (emphasis added):
The primary benefit of mergers to the economy is their efficiency-enhancing potential, which can increase the competitiveness of firms and result in lower prices to consumers. Because the antitrust laws and, thus, the standards of the Guidelines, are designed to prescribe only mergers that present a significant danger to competition, they do not present an obstacle to most mergers. As a consequence, in the majority of cases, the Guidelines will allow firms to achieve available efficiencies through mergers without interference from the Department.
Accepted as orthodoxy by both the Republican and Democratic administrations that followed, the Borkian underpinnings of the 1984 “Guidelines” have gone unchallenged by government officials. No longer constrained by limits enacted to promote competition, the business community was effectively given the green light to consolidate. And consolidate they did.
In the four decades since the publication of The Antitrust Paradox, corporate concentration has remade nearly every corner of the U.S. economy. According to a study by The Economist, two thirds of all corporate sectors have become more consolidated since 1990. To name but a few examples: three drug stores control 99 percent of their market; four airlines control 80 percent of the domestic aviation market; and two companies, Facebook and Google, control 75 percent of the digital advertising market. And the trend is continuing, from agriculture to health insurers, defense contractors to beer.
A growing body of research suggests such consolidation is responsible for a whole host of economic repercussions, including wage stagnation and income and wealth inequality. But perhaps most importantly, the adoption of Bork’s “consumer welfare” standard has fundamentally reoriented what it means to be a citizen of the United States.
Whereas prior generations of lawmakers protected the American citizenry as businessmen, entrepreneurs, and growers, Bork led a revolution that sacrificed the small producer at the altar of efficiency and cheap goods. With the publication of The Antitrust Paradox 40 years ago, the American citizen was, in a very real sense, reduced to a mere consumer.
Daniel Kishi is associate editor of The American Conservative. Follow him on Twitter: @DanielMKishi.