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Like many women activists of my generation, I came of age politically by joining in the fight over reproductive rights. In 1986, I boarded a bus packed with other college students and rode from New Haven to Washington, clutching a handwritten cardboard sign that urged the Supreme Court to preserve Roe v. Wade. Later, in law school, I came to believe two things about the American legal system. First, its crowning achievement was the expansion of constitutional rights during the postwar New Deal era. In the 1950s, ’60s, and early ’70s, the Supreme Court found school segregation unconstitutional, protected the rights of criminal defendants, and put teeth on the First Amendment’s guarantee of free speech, among other landmark decisions. And, of course, there was Roe.
The second thing my classmates and I learned was that this achievement was under assault by a conservative backlash. The same forces that powered Ronald Reagan into office in 1980 were seeking to curtail many of the constitutional rights secured by the courts in the postwar era. That’s why, early in my career, I took a job as the legal director of NARAL Pro-Choice America. Later, I spent 11 years running the American Constitution Society—the liberal counterpart to the Federalist Society—where I helped vet and promote judges. In 2021, President Joe Biden appointed me to his Presidential Commission on the Supreme Court of the United States. All along, I was focused on preserving and enlarging civil rights.
Given my background, the reversal of Roe last year felt like a crushing blow. But as I reflect on my career in the law, my greatest regrets lie elsewhere. The progressive advances of mid-20th-century America weren’t, after all, only about civil rights and social justice. Equally important was the political-economic arrangement established during and after the World War II era. It featured a powerful regulatory state, aggressive antitrust enforcement, and strong labor unions. These policies kept corporate power in check and helped drive the fastest, most widely shared advance in living standards in American history.
[Read: Red states are rolling back the rights revolution]
I recognized the importance of this legacy—my first job practicing law was at a union-side labor-law firm—but it was not top of mind for liberals of my generation. It was for the other side. The conservative legal movement was just as intent on dismantling the political-economic achievements of the New Deal era as it was on reversing the rights revolution. And its leaders understood that they could leverage each goal to help achieve the other. To culturally conservative voters, they vowed to appoint judges who would overturn Roe. At the same time, much more quietly, they assured large corporations and economically conservative billionaires that these same judges would also be hostile to unions, business regulation, class-action lawsuits, and antitrust enforcement. The strategy brought huge numbers of culturally conservative voters into the Republican column while helping ensure a steady stream of campaign contributions from libertarian-leaning mega-donors such as Barre Seid, who recently gave $1.6 billion to the Federalist Society, and the Koch brothers. These patrons may be indifferent to abortion and supportive of other civil liberties, but they are above all convinced of the evil of business regulation.
That two-pronged approach has been highly successful, helping entrench a Supreme Court majority hostile to the social-justice and civil-rights agendas I spent my whole career fighting for. It pains me to recognize the extent to which progressives like me ignored it.
Nothing encapsulates liberals’ tunnel vision more than the acrimonious confirmation hearings for Robert Bork, whom President Reagan nominated to the Supreme Court in 1987. Top Democrats at the time, led by Senators Joe Biden and Ted Kennedy and backed by liberal activist groups, attacked Bork for his reactionary views on civil rights and free speech. In a famous opening statement, Kennedy described “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions” and “Blacks would sit at segregated lunch counters.”
The strategy worked; the Senate voted against Bork, and the seat eventually went to the more moderate Anthony Kennedy. In hindsight, however, what’s remarkable is what the campaign against Bork left out. Bork was an antitrust professor and a key figure in the laissez-faire economic revolution based at the University of Chicago. His most important work, by far, was his 1978 book, The Antitrust Paradox, which argued that America’s long tradition of aggressive enforcement was based on a false premise. The antitrust laws weren’t designed to curtail corporate power, he argued. They were meant only to promote economic efficiency, or “consumer welfare,” as he called it. Monopolies were generally benign, in his view, because they would be more efficient than smaller firms.
Bork’s writing on this subject was massively influential, especially where it mattered most: the federal judiciary. In a 1979 decision, the Court endorsed Bork’s claim that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” Bork’s ideas also became a keystone of the Reagan administration’s economic policy. In 1980, two of Bork’s ideological allies from the University of Chicago (one of whom, Richard Posner, became a prominent federal judge himself) wrote a detailed memo to the Reagan transition team urging the administration “to prune an area of luxuriant and pernicious federal regulation: the overexpansion of antitrust law enforcement.” Reagan followed this advice closely. His antitrust chief wrote new prosecutorial guidelines that sharply cut back on antitrust enforcement, enabling the endless rounds of mergers and acquisitions that fueled the explosive growth of both Wall Street and inequality.
During Bork’s 30 hours of testimony during his confirmation hearings, antitrust wasn’t a major area of emphasis. On the very last day, however, in a sparsely attended session, Charles Brown, the attorney general of West Virginia, warned that Bork’s position on antitrust law, though unlikely to make a “10-second spot on the evening news,” was by far the most worrisome part of his record. “I submit to this committee that in no other area will the effect of a Bork appointment be so completely felt,” Brown said. “The short-run effect would be the squeezing of American pocketbooks and the draining of America’s entrepreneurial spirit. The long-run impact would be to impede those principles of business freedom which Americans so deeply cherish.”
These words proved prophetic, even though Bork wasn’t confirmed—because on economic issues, he had already won. Even Democrats had gotten on board with parts of the deregulatory agenda. In fact, Ted Kennedy had spearheaded airline deregulation in the 1970s. In the post-Watergate, post-Vietnam era, many liberals worried more about government overreach than about corporate power. Bork had explicitly compared New Deal antitrust to New Deal civil-rights jurisprudence. The Warren Court, he wrote, “wrecked many fields of law in its reckless and primitive egalitarianism. Antitrust was one such field.” Liberals, however, didn’t make the connection.
Reagan had made a point of packing the federal judiciary with pro-corporate, anti-regulation judges. And yet, after Democrats regained the White House in 1992, there was no push to appoint jurists who would break with the Chicago-style agenda. Indeed, in 1994, Clinton nominated Stephen Breyer to the Supreme Court. Earlier in his career, Breyer had been Ted Kennedy’s top aide on airline deregulation. As a justice, he would combine a committed defense of abortion and voting rights with a business-friendly posture on antitrust and regulation.
In the assessment of the legal scholars Lee Epstein, William Landes, and Richard Posner—yes, the same guy who urged Reagan to “prune” antitrust enforcement—the right has captured even most liberal judges with regards to economic policy. In a 2017 paper titled “When It Comes to Business, the Right and Left Sides of the Court Agree,” they wrote that “the four Democratic appointees serving on the Roberts Court are far more business-friendly than Democratic appointees of any other Court era. Even more surprising, the Democrats vote in favor of business at significantly higher rates than Republican appointees in all the other chief justice periods since 1946.” The Democratic appointees are still more liberal on economics than their Republican-appointed colleagues, but they’re far to the right of their own liberal predecessors.
In a 2003 antitrust case, for example, all of the liberals joined an opinion by Antonin Scalia that declared, “The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system.” In 2017, Breyer wrote the majority opinion in a case upholding the right of debt-collection companies to go after people for money they no longer owed. The same year, Sonia Sotomayor wrote an opinion that limited the Securities and Exchange Commission’s power to force those found guilty of securities fraud to give up their stolen gains.
Liberal judges have issued opinions like these while simultaneously championing progressive positions on issues such as abortion and voting rights. By delivering measurable wins to business-side conservatives, they have helped fuel an engine designed precisely to unravel the civil rights they held so dear. The more the courts favor big business, the more powerful big business becomes, and the more powerful big business becomes, the more financial support it can lend to the right-wing legal movement.
In my decade running the American Constitution Society, I never gave much thought to political-economic issues such as antitrust and competition policy—they were just not on our agenda. When we scrutinized the records of Bush and Trump judicial nominees, we probed their views on abortion, voting, and criminal justice, and, to a lesser extent, on labor. When we pushed the Obama administration on judicial candidates, we focused mostly on demographic diversity, while unsuccessfully pushing for more civil-rights lawyers and public defenders. When lawyers with backgrounds in antitrust or labor law made it to the bench, they typically came from the corporate-defense side. I’m proud of my work promoting judges from backgrounds that were woefully underrepresented in the judicial branch. But I regret that I mostly ignored where these judges stood on the question of corporate power.
[Read: How democrats killed their populist soul]
Now the Biden administration is repeating the same mistake. In many ways, Biden has broken from the modern trend of Democrats ignoring questions of economic power. His administration recently identified rigorous enforcement of antitrust and other competition policies as one the three main pillars of his economic plan, and he has appointed aggressive antitrust enforcers at the Department of Justice and the Federal Trade Commission. The success of these antitrust officials, however, hinges on how their arguments are received in federal court—and on judicial nominations, Biden has mostly maintained the liberal status quo.
Biden has excelled in advancing diversity in the courts, including in the kind of law his nominees have practiced: Two-thirds of his judicial appointments have been women and two-thirds people of color. More than half worked at public-interest, civil-rights, or legal-aid organizations, according to an analysis done by Demand Justice, a progressive legal-advocacy organization. But Biden has advanced very few candidates to the federal bench with any background whatsoever in administrative law, union-side labor law, or antitrust. In July, a judge appointed by Biden to the United States District Court waved through the largest tech merger ever, between Microsoft and the giant video-game publisher Activision Blizzard, over the objections of the Federal Trade Commission and its Biden-appointed chair, Lina Khan.
In the past few years, members of both parties have begun to realize that unconstrained corporate power threatens some of their core values. The Biden administration is trying to do something about it, but that hasn’t generated much excitement from a liberal base that is still more focused on social issues. Progressives, especially, must recognize that preserving constitutional freedoms depends on winning the fight for economic liberties. Treating them as separate goals will ultimately mean losing out on both.