Like many activists of my generation, my political awakening came through my involvement in the fight for reproductive rights. In 1986, I joined a busload of college students on a trip from New Haven to Washington, DC, holding a handmade sign in support of preserving Roe v. Wade. It was during law school that I began to understand the significance of the American legal system, particularly the expansion of constitutional rights during the New Deal era. This era saw groundbreaking Supreme Court decisions that ended school segregation, protected the rights of criminal defendants, and upheld the freedom of speech guaranteed by the First Amendment. And then there was Roe.
However, amidst these victories, I also witnessed a conservative backlash that sought to dismantle the progress made during the New Deal era. The forces that catapulted Ronald Reagan into office in 1980 were determined to roll back the constitutional rights that had been secured by the courts. This realization drove me to take on the role of legal director of NARAL Pro-Choice America and later, to spend 11 years leading the American Constitution Society, an organization that promotes progressive judges. In 2021, President Joe Biden appointed me to the Presidential Commission on the Supreme Court of the United States. Throughout my career, I have been focused on preserving and expanding civil rights.
The recent reversal of Roe v. Wade dealt a devastating blow to me and many others who have fought for reproductive rights. However, as I reflect on my career in the legal profession, I have come to realize that my greatest regrets lie elsewhere. The progress made during mid-20th-century America was not solely about civil rights and social justice. Equally important was the political and economic framework that emerged during the post-World War II era. This framework included a robust regulatory state, vigorous antitrust enforcement, and strong labor unions. These policies served as a check on corporate power and contributed to the rapid and equitable increase in living standards in American history.
While I recognized the significance of this legacy early on, it was not a primary concern for liberals of my generation. However, it was a central focus for conservatives. The conservative legal movement was not only intent on reversing the rights revolution but also determined to dismantle the political and economic achievements of the New Deal era. Their strategy was to promise culturally conservative voters that they would appoint judges who would overturn Roe while quietly assuring corporations and economically conservative billionaires that these judges would also be hostile to unions, business regulation, and antitrust enforcement. This approach attracted culturally conservative voters to the Republican Party and secured financial support from libertarian-leaning mega-donors who opposed business regulation.
This two-pronged strategy has been remarkably successful in creating a Supreme Court majority that is unfriendly to social justice and civil rights, causing me great pain as a lifelong progressive. However, what troubles me even more is the extent to which we as progressives have ignored this reality.
Nowhere is this tunnel vision more evident than in the contentious confirmation hearings for Robert Bork, who was nominated to the Supreme Court by President Reagan in 1987. Democratic leaders such as Senators Joe Biden and Ted Kennedy, supported by liberal activist groups, criticized Bork for his regressive views on civil rights and free speech. Kennedy famously described “Robert Bork’s America” as a place where women would be forced into dangerous back-alley abortions and African Americans would be subjected to segregation.
While this campaign was successful in preventing Bork’s confirmation, it failed to address a crucial aspect of his record. Bork was a prominent antitrust professor and a key figure in the movement against government intervention in the economy. His influential book, “The Antitrust Paradox,” argued that aggressive enforcement of antitrust laws was based on a flawed premise and that monopolies were generally beneficial for economic efficiency. Bork’s ideas shaped the federal judiciary, and his influence was reflected in the Reagan administration’s economic policy, which saw a reduction in antitrust enforcement and a wave of mergers and acquisitions that fueled economic growth and income inequality.
During Bork’s confirmation hearings, antitrust was not a major focus of discussion. Only on the final day of the hearings did Charles Brown, the attorney general of West Virginia, draw attention to Bork’s views on antitrust, emphasizing the potential negative impact on American businesses and entrepreneurial freedom. Unfortunately, these concerns were largely overlooked, as Democrats themselves had already embraced elements of the deregulatory agenda. This can be seen in their support for airline deregulation, led by Ted Kennedy in the 1970s. Many liberals in that era were more concerned about government overreach than corporate power, failing to recognize the parallels between antitrust regulation and civil rights jurisprudence.
Even after Democrats regained power in the White House, there was no concerted effort to appoint judges who would challenge the Chicago-style economic agenda. In fact, President Clinton nominated Stephen Breyer to the Supreme Court in 1994, a nominee with a history of supporting airline deregulation. While Breyer has shown commitment to defending abortion rights and voting rights, he has also adopted a business-friendly stance on antitrust and regulation.
According to legal scholars, even liberal judges have been swayed by conservative economic policies. In a 2017 paper, they noted that Democratic appointees on the Supreme Court have been more business-friendly than their predecessors, aligning with conservative judges on economic issues. This shift reflects a broader capture of economic policy by the right, with Democrats being far to the right of their liberal predecessors in this regard.
For example, in a 2003 antitrust case, all of the liberal justices joined an opinion by Antonin Scalia that argued that possession of monopoly power and charging monopoly prices is not inherently unlawful but can be beneficial to consumers. This shows how deeply entrenched conservative economic ideology has become, even among liberal judges.
In conclusion, as someone who has dedicated their career to fighting for social justice and civil rights, it pains me to acknowledge how we as progressives have overlooked and dismissed the importance of economic policy. While the reversal of Roe v. Wade is a significant setback, the erosion of the New Deal era political and economic framework is equally troubling. It is essential for progressives to recognize the interconnected nature of civil rights and economic justice and work towards a more holistic understanding of the challenges we face. Only then can we effectively combat the conservative legal movement and protect and expand the rights and opportunities for all Americans.
Denial of responsibility! Vigour Times is an automatic aggregator of Global media. In each content, the hyperlink to the primary source is specified. All trademarks belong to their rightful owners, and all materials to their authors. For any complaint, please reach us at – [email protected]. We will take necessary action within 24 hours.
