Conservatives against Judge Bork
By Alberto Mingardi
I naively thought Judge Bork was a hero of the American right. A major “originalist” thinker, the fact that Bork wasn’t confirmed as a Supreme Court nominee was a drama of the Reagan Administration (read here an insightful account). Bork was a prominent conservative jurist and influenced generations of conservative law scholars. So I was surprised to read an article reminiscent of Ted Kennedy’s smear of “Robert Bork’s America” in The American Conservative.
“While he never had the opportunity to shape U.S. jurisprudence from a seat on the high court”, writes Daniel Kishi, “we nonetheless today live in Robert Bork’s America.”
You may wonder why. The short answer is that Judge Bork’s views on competition and antitrust, best expressed in his 1978 The Antitrust Paradox, “found immediate purchase in the corridors of power”. “In the four decades since the publication of The Antitrust Paradox, corporate concentration has remade nearly every corner of the U.S. economy”.
Kishi challenges Bork’s views as somehow functional to the purported unhealthy and sinister collusion of the judiciary with Big Business, but uncritically buys the vignette by which the antitrust “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 monopolist”.
Besides the dubious claim that “the origins of America’s antitrust (or anti-monopoly) tradition can be traced back to the American founding”, which equates opposition to monopoly (by and large a product of privilege and special legislation) and business consolidation, Kishi seems to believe that the Sherman Act was a gallant endeavour against rampant business interests that tried harder and harder to influence political power. There is plenty of interesting literature that suggests that, as any piece of legislation, the Sherman Act was itself the product of intense business meddling. See for example these easily accessible on line articles by Robert Bradley and Thomas Di Lorenzo. For a careful, balanced reading of the Sherman Act’s legislative history, I think Law and Economic Policy in America by William Letwin is still a point of reference.
Kishi understands that Bork’s book was part of a larger movement, though he writes simply that it “was steeped in the laissez-faire ideology of libertarian luminaries such as Milton Friedman” (a bit bizarre as a description for such a conservative man like Bork) and doesn’t mention the vast literature on antitrust that originated in Chicago in those years.
He belittles the concept of “consumer welfare” by arguing that:
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.
This passage is rather telling. For Kishi, Robert Bork’s America is a country that cares about consumers’ welfare, more than about producers’ success (particularly, more than small producers’ success). Somehow thinking that “reductions in price ought to be considered a desirable outcome” is threatening. Threatening, I suppose, for jobs. So, Robert Bork gave us Amazon, whereas the conservative utopia should be the business equivalent of the Smurfs’ village. A virtuous, moral, fulfilling life is a byproduct of stability which is a byproduct of a serene absence of economic change. If one assumes this as politically desirable, indeed the problems of the unintended consequences of antitrust enforcement (for example, on innovation) are bound to look trivial.
John McGinnis has written a far more learned rebuke of Kishi’s piece for our sister blog, Law and Liberty.