Evil Geniuses: The Unmaking of America: A Recent History (17 page)

Bork’s Yale faculty colleague and friend Guido Calabresi, later dean of the law school, said the
early
-1960s Bork was “an aggressive libertarian conservative—that is, ‘Keep the Government out of everything.’ ” But by 1971, when he wrote his famous originalism article, the times had revealed that what Bork called his “generally libertarian commitments” were a sham that really
only
applied to economics, the freedom of businesses to do whatever they wished.
^*2

Except for people in the pornography business. Porn movies were just starting to be mainstreamed, and they loom curiously large in Bork’s article. Pornography is “a problem of pollution of the moral and aesthetic atmosphere precisely analogous to smoke pollution” and possibly an even greater danger to public health, so it was okay to outlaw smut. Bork declared elsewhere in the article that the quintessentially political act of burning an American flag shouldn’t count as free speech either, because the flag is, you know,
“unique.”
Likewise, he wrote that the Supreme Court decision that individuals’ rights to privacy included the right to buy contraceptives was “utterly specious” and “unprincipled.” Likewise, Bork ruled as a federal judge that the navy could fire a sailor for being gay because there was no explicit “constitutional right to engage in homosexual conduct”—although as a professor he’d also just argued for welcoming employers to Yale who discriminated against gays because Yale simply shouldn’t “ratify homosexuality.” And likewise, he said that the Constitution’s equal protection clause shouldn’t prohibit discrimination against women—yet also that
amending
the Constitution to guarantee equal rights for women would be a bad idea. In his later books—
Slouching Towards Gomorrah: Modern Liberalism and American Decline,
and
A Country I Do Not Recognize: The Legal Assault on American Values,
he completely dropped the judicious mask to spew full-strength reactionary bile.

In other words, as Bork spent a career creating and propagating this new doctrine of worshiping the old, his claims of principled impartiality—that he was
all
about adhering to the Constitution as written when it was written, that “nothing in my argument goes to the question of what laws should be enacted,” and that it “has nothing to say about the speech we like or the speech we hate”—were not just disingenuous but flatly contradicted again and again by his arguments in particular cases.

Even though he lost his great battle in 1987 for a seat on the Court that he might have held until his death in 2012, his side kept winning the war. Just a decade after Bork was dinged, Rosen found it “a little startling to reflect on how dramatically [Scalia] and the movement that he personifies have transformed the terms of constitutional debate.” Like Bork, the judicial general of the right wing whom he replaced, Scalia used the supposedly neutral philosophy of originalism as a means to achieve a particular set of right-wing ends. In his 1997 book on the subject, published after a decade on the Court, he made clear he was not actually “a partisan of textualism or originalism, but a partisan of traditionalism,” Rosen explained back then, which

looks a lot like the judge-made law that he claims to abhor….He strives in his jurisprudence to conserve traditional moral values against…cultural change. He is exercised not by the methodology of recent Supreme Court decisions, but by the results. His objection to the cases [a males-only public college, an antigay state law] is that they unsettle longstanding traditions that he, as a proud social conservative, wants to keep.

Like almost everyone on the right today, Bork was a very selective, cherry-picking libertarian of convenience—iffy on civil liberties and executive power and even iffier on personal liberty, but unbudging in defense of the rights of business (apart from publishers, especially pornographers) to operate without restraint. In one of his books from the 1990s, he was still complaining about smut—“the pornographic videos,” the early Internet erotica site “alt.sex.stories”—and even about people on the right unwilling to outlaw it: “Free market economists are particularly vulnerable to the libertarian virus.”

Free-market political economics was where Bork’s beliefs were forged back in the day, and where his specific influence, beginning in the 1970s and ’80s, remains vast and enduring. Like so many midcentury American right-wing zealots, Bork had been a left-wing zealot in his youth, a teenage nationalize-it-all socialist. Right after World War II, when anti-Communism suddenly became a national faith, Bork “went to the University of Chicago and came across the Chicago economists” such as “Milton Friedman…and they destroyed my dreams of socialism right there.” As a graduate student working with Friedman’s brother-in-law, another influential right-wing Chicago School economist and antitrust specialist, Bork said he had the equivalent of “a religious conversion,” immediately becoming “an avid free-market type.” He spent most of the 1950s as a lawyer in private practice in Chicago specializing in antitrust cases for big business defendants, and when he joined the Yale faculty, students joked that he taught “
pro
-trust law.”

But the opinionated and cocksure young Bork didn’t stay in his lane. Economic libertarianism was also the basis of his argument in 1963 and 1964 against the proposed Civil Rights Act.
^*3
At the very moment when Martin Luther King, Jr., was leading the watershed pro-civil-rights March on Washington in August 1963, Bork published an article in
The
New Republic
arguing that any law requiring businesses to serve people of all races would be “subversive of free institutions” by “self-righteously impos[ing] upon a minority”—that is, upon racist white businessmen—“the morals of the majority.” The Civil Rights Act was based on “a principle of unsurpassed ugliness,” Bork explained, that might lead to an even more nightmarish future for businesses—requiring “not merely fair hiring of Negroes in
subordinate
positions, but the choices of
partners
or
associates
…without regard to race” (emphases added). It was these statements that lost him the seat on the Supreme Court.

But apart from that early crusade against civil rights, as a scholar Bork mainly stuck to his actual specialty, antitrust. For almost a century, antitrust laws had been passed and more and more strongly enforced because Americans agreed that when companies became very large, they tended to get too much power, to crush smaller businesses, to scare off entrepreneurial competitors, to charge too much for products, to pay workers too little, to corrupt government. Even regulation-hating right-wingers like Friedman originally made an exception for antitrust laws.

According to Richard Posner, the influential conservative University of Chicago economist and law professor (and former federal court of appeals judge), in the 1950s “business-oriented people and conservative lawyers were troubled by the antitrust jurisprudence” because it was getting too leftish, too anti-big-business. “But they didn’t have the vocabulary or conceptual system with which to criticize that jurisprudence” until Posner and his conservative academic comrades started producing it. As antitrust enforcement and Naderite consumer activism got more aggressive in what Posner calls “the collectivist mood of the 60s and 70s,” that business-oriented right got acutely nervous. Forced to choose between the principle of maximum competition and their bottom-line wish for unencumbered big business power, the conservative intellectuals chose the latter. Bork was among that select group of “free enterprise radicals” whom Milton Friedman gathered at his 1970 conference in Washington, and according to a historian of antitrust law, he became “concerned the socialists would take over the country through antitrust.”

Rather than undertake a doomed quest to repeal those statutes, Bork contrived a brilliant way to neuter their enforcement by getting legal thinkers and judges to reinterpret and redefine the laws in pro-big-business fashion. That is, the great “originalist” opponent of any kind of “judicial activism” adopted
a strategy based entirely on vigorous judicial activism.
He argued that America’s evolving, expansive intentions with antitrust laws as they’d been understood, to keep big business from screwing over the rest of us, made that body of law and precedent an impossible muddle. “Antitrust policy cannot be made rational until we are able to give a firm answer to one question,” he wrote in his incredibly influential 1978 book on the subject,
The Antitrust Paradox
. “What is the point of the law—what are its goals?” His too-simple answer, true to a too-simple Chicago School free-market vision: maximizing economic efficiency in the system exclusively and by any means necessary.

Bork had been working on the argument for years, but he published his book at just the right moment, when a critical mass of Americans were persuaded that government was terrible and that regulation was terrible—and who really understood or cared about this antitrust gobbledygook anyhow? As Judge Posner says, with characteristic candor, there was now “a respectable body of academic thinking” that big business and economic right-wingers “could use to support their predilections,” “a patina of academic respectability” to justify their “instincts.”

Although the original U.S. antitrust law in 1890 was intended mainly to keep mighty new corporations from unfairly crushing competitors, and subsequent antitrust statutes had other specific origins and intentions, in his book Bork badly distorts that history by casting the whole long, amorphous body of law strictly as a “consumer welfare prescription” that “Congress designed” in 1890. As another law professor and leading antitrust expert wrote in the 1980s, Bork made the “brilliant but deceptive choice of the term ‘consumer welfare’ as his talisman, instead of a more honest term like…‘total economic efficiency.’ After all, who can be against ‘consumer welfare’?” Furthermore, Bork declared that the
only
legitimate measures of undesirable and illegal corporate power were improperly high prices. Naderites had just successfully turned
consumer
into a kind of synonym for
citizen,
and
consumer welfare
into the all-American lodestar concerning business, so now Bork flipped it: Who cared how businesses behaved or how large they got as long as they sold their products cheaply?

Exactly one year after Bork’s book was published, a pivotal Supreme Court decision quoted its key “consumer welfare” sentence, and since then federal judges have quoted the line in antitrust decisions dozens of times. Just like that, economic efficiency as measured by prices became “the stated goal in antitrust”
exclusively
. “Antitrust was defined by Robert Bork,” says the University of Arizona law professor and antitrust specialist Barak Orbach.

I cannot overstate his influence. Any antitrust person would tell you the same thing….The Court started thinking they should have an economic framework, and they had Chicago’s work as very simple ideas they could use. The thing about this is that they were very simple. You read them, you understand them. Any person can understand them….The world is not that simple.

Again and again after that, Supreme Court decisions, relying on Bork’s arguments in
The Antitrust Paradox,
legalized behaviors by corporations—becoming virtual monopolies, stifling competition, and so on—that until 1978 everybody had agreed were violations of federal law and antithetical to fair, healthy free-market capitalism.

What’s more, in the 1970s and ’80s a whole new field of law emerged out of the theories and ideas that Bork and his fellow Chicago School libertarians had been crafting. Its name is simple and deceptively generic: Law and Economics. Getting lawyers and especially judges more fluent in economic analysis is a good thing, of course. But the animating idea behind Law and Economics was political—that a main point of
the law,
not only of antitrust, is to maximize economic efficiency, that the law’s bottom line is the economic bottom line. So if you happen to think it’s a good idea for judicial decisions to also consider fairness or moral justice, or other values or versions of social happiness that can’t be reduced to simple metrics of efficiency, Law and Economics says you’re a fool. Like its brilliantly anodyne name, the equations and other math in Law and Economics texts give it an impartial, scientific sheen. The founders of Law and Economics understood that we do indeed live in a
political
economy, that determining who’s entitled to what is the result of all kinds of power struggles and societal choices—so they wanted
their
hard-core free-market politics explicitly encoded into America’s underlying legal DNA.

In the mid-1980s, as Law and Economics was taking off, the renowned constitutional law professor Bruce Ackerman, then at Columbia and now at Yale, called it “the most important thing in legal education since the birth of Harvard Law School” in 1817. The speed and effectiveness of the movement’s spread was remarkable. Its founders had spent decades laying its groundwork, so how did the 1980s blitz of law schools happen? It was thanks in large part to the Olin Foundation, which gave Harvard Law its biggest donation ever, the equivalent of $44 million, to create the John M. Olin Center for Law, Economics, and Business. It also created Yale Law’s Olin Center for Studies in Law, Economics, and Public Policy, Stanford Law’s Olin Program in Law and Economics, and the University of Virginia Law’s Olin Program in Law and Economics, among others. By the end of the 1980s, more than seventy universities had started Law and Economics programs. They’d become almost obligatory, and then ubiquitous. Victory for the legal right was swift and total.

During the 1980s, that public university that the Kochs and others on the economic right had been taking over in Virginia outside Washington, D.C., George Mason, hired one of the founders of the Law and Economics movement to create a law school from scratch. The conservative AEI gloated that while “law and economics programs at elite institutions had to adapt to institutional norms,” George Mason “was free to launch an Austrian-flavored program”—right-wing libertarian by way of Friedrich Hayek—“free from such constraints.”