Philadelphia Reflections

Robert H. Bork (1 of 1) 5 blogs

"The life of the law has not been logic. It has been experience. "--Oliver Wendell Holmes, Jr.

The Sherman Antitrust Statute and its Penumbra

The Sherman antitrust statute was written in haste, and most of its real substance is found in the Clayton antitrust statute, the National Labor Relations Act, the Federal Trade Relations Act, and countless commentaries from decisions of the Supreme Court. Cases related to this subject often run for several years, so a whole industry of lawyers on both sides of the aisle concentrates on this subject alone, and defends its methods. The patron saint of this industry is Justice Brandeis, who helped mold a Republican law into a Democratic concept that evil pricing and merger practices result in the discomfort or dissolution of small business competitors, and competition, therefore, must suffer. In time, proof or admission of any one of the per se violations became sufficient to complete a case without further litigation. Since the computer case which destroyed Philadelphia's computer dominance went on for years, the per se shortcut was thought to have a real advantage over "trials of the merits." But it also resulted in the Maricopa case which had multiple appeals of a per se violation eliminating physician control of HMOs -- by a 4-3 Supreme Court decision, deemed final without any examination of the substance of the underlying accusation. The great majority of cases were tried on the per se violations level, and never examined the merits of other evidence. It has even become rumored that some courts sacrificed justice in order to clear crowded calendars of settled law, on which the judges had long ago made up their minds about rightful outcomes..

Into this atmosphere rushed Bork the young whippersnapper. The law gradually shifted its position from praising smallness to praising competition, probably noticing that the Industrial Revolution had shifted the upper edge of "small "business to a billion dollars of revenue per year. Bork persisted in the belief that this was not enough. The real test should be whether consumer prices become lower after a merger, or whether some other evidence might be produced that the public benefitted from the change, primarily through "vertical integration". Where the question rests is now whether the integration of any sort might merely be a smokescreen for producer capture of unelected regulatory agencies. Years after Bork himself has died, it remains a political decision whether "abdication to unelected regulators" is the real goal, or whether Bork's revolution will stop with "consumer benefit". Either way, it is a great victory for logic, to shift the goalposts so far within one man's lifetime, and continuing to gather momentum nearly a decade after he has died.

Please notice that Bork's "logic" also threatens Oliver Holmes's "experience", so Bork may be far from finished with us, even after the visible tangles have been addressed.

Robert Bork and Watergate

Bork was Solicitor General during Watergate. The unfilled vacancy of Vice President Spiro Agnew was hanging over the Nixon impeachment affair because that job seemingly had to be filled before you dared create another vacancy at the Presidential level. Because the new Vice President would likely become President, but everyone plausible was afraid to take the job. The Solicitor General wrote many of the key speeches. He died before his book of memoirs could be finished.

The Law

We have had judges and case law (also called common law) continuously since Roman times, longer than any government has survived. By contrast, "statutory "law usually responds more suddenly to the changing natures of rulers, often seeing military law or anything resembling it, as a temporary expedient for the survival of the state. The two forms of law are frequently suspicious of each other, so if both forms of law coexist, they often link through a Constitution defining their boundaries. Common law usually evolves slowly and coherently, whereas statutory law has less patience with traditions, and becomes based on some variant of force imposed by unrelated kings, emperors, tribunes or legislatures, often resisted by local citizens through compromise or rebellion. Much depends on whether or not there are long periods of stability between episodes of war. English common law traces back to the Norman Conquest of 1066, gaining its present form after notable negotiations with King Arthur, Charlemagne, and Francis Bacon, among many others. It seeks "fundamental" truths, eventually founded on the customs of the people defined in that same Constitution. The first written Constitution of any nation was the American one, And it was the only one to last two hundred years, even though several hundred Constitutions have been tried by numerous other attempted democracies. Generally speaking, constitutions define the boundaries of statutory law but also contain a Bill of Rights. The latter is politely worded to define limits to how a simple majority may learn the will of the public, or beyond which statutory authorities may not go without special forms of extra permission. The heart of American common law lies in the first ten amendments to the Constitution, written by James Madison, and called the Bill of Rights. It might well be stated that it protects minorities from majorities, avoiding armed rebellion, but even hinting at that recourse in the Second Amendment. Madison was chairman of the designated committee of the first Congress, extracting ten of the hundred proposals the committee received from fellow members. This degree of mistrust was certainly a clear sign of coming dissatisfaction with any form of government whatever, by a people who mostly hoped to be left alone.

Bob Bork

Robert Heron Bork was a lawyer, receiving his undergraduate and law school degrees from the University of Chicago. He spent his teaching years at Yale and was two years younger than I am. He died in 2012, and so I outlived him both before he was born, and afterward, and have looked on him as both a young squirt and a thing of the past. During his long career, he wrote at least ten books, was a partner in a prestigious law firm, taught hundreds of law clerks and students, served in the U.S. Marine Corps. served as Solicitor General and Acting Attorney General of the United States, and Circuit Court of Appeals for the District Court of Washington DC. It was while he was doing all this, he came to the notice of Ronald Reagan and was nominated for a seat on the U.S. Supreme Court.

This review concentrates on five episodes -- a successful revision of the whole concept of the Sherman Antitrust Statute after sixty years of reigning as Brandeis' settled law for small business, his invention of "the best interest of the consumer" as a better basis for common law, his identification of Roe v. Wade as the right decision proceeding from the wrong starting-point, and his conversion to Justice Anton Scalia's version of "original intent" as the basis for challenging the "living Constitution" theory of the Warren Court to judicial legislation. Although Bork wrote and extrapolated from hundreds of decisions, these four issues set forth the flavor of his approach, and the tragedy of the fifth, Senator Arlen Specter's blockage of Bork's Supreme Court nomination.

The word style is that of a judicial opinion, excessively wordy in order to explain how a brilliant mind considers both sides of everything. Surely he could have afforded a popular editor to appeal to the public, and thus to defeat Specter. Apparently, he disdained such condescension and willingly paid the price for retaining an ancient approach to a modern problem.

Must Roe Lead to Wade?

The case of Roe v. Wade is famous enough, but it actually begins twenty years before 1879, with the discovery of anesthesia in 1848. Anesthesia had made abortion simple, but it triggered thousands of deaths from puerperal sepsis during the interval before Pasteur and Lister popularized its bacterial cause and prevention. Seeing no better solution, the AMA urged its members to seek state laws to curtail the epidemic with abortion prohibitions. Connecticut in 1965 still retained an unrepealed law against contraceptives even in the bedroom, hung over (and largely unenforced) from earlier days. At that time, the AMA was horrified by the mayhem of women dying like flies from having abortions, after anesthesia but before aseptic technique. By 1911 the AMA voted to take steps to reverse things, but various church groups among members were better politically organized to paralyze nation-wide action, although many states did repeal the outmoded laws. In fact, such battles were still being fought in 1950, when I first entered the House of Delegates. The Medical Association at its subsequent national conventions was restrained by the declaration of its more religious members that they would resign if the Association now voted to reverse activities it had fervently demanded earlier. The result was an unfortunate political straddle which both weakened the Association by its loss of academic members, and gave out a misleading public image of where it stood. The law was obsolete, badly needed to be reviewed, but for internal political reasons could not obtain the medical leadership to go forward while still retaining membership among some religious groups or their opponents. That is, it was unable to choose between two groups of members, perhaps deciding wrongly which ones to pick. The resultant seizure of control of the abortion issue by nonphysicians caused many destructive effects on organized medicine's leadership of purely scientific matters. This image must now be somehow repaired because the mistakes appeared to the public as implying social indecision in the face of scientific facts. The present image, despite adding thirty years to public longevity, is now "You may ask them questions, but you needn't take their advice." Until quite recently, the expression to obey was "The doctor who treats himself, has a fool for a patient."

Lawyer doesn't come out of this looking very good, either. This is another profession where advantage can be taken, but when trust is destroyed, you suffer for it. It is not possible to say that a judge only follows the Constitution when privacy is nowhere found in the Constitution but still dictates stretching the privacy in the bedroom into general privacy, not merely for sodomy. but for any and all criminal activity. Robert Bork pointed out that this is some sort of blind alley to be avoided. But he is dead and the rest of his profession is leading us further down the path. Over and over, Bork exclaims that the Supreme Court must not take the role of a legislature and invent rights which could never pass the legislative branch. That's what Anton Scalia said, and Bork converted to the religion. The courts interpret the law as written by the Legislative Branch, and merely bite their lips until the legislature says to intervene. Bork found countless instances of Congress saying impossible things, but Congress refused to act. Congress wants to get reelected, so if they refuse there must be public resistance. Roe v. Wade is merely one example of what happens if the Supreme Court invents the Constitution and resorts to unauthorized workarounds. They may be entirely right, but they weren't elected. It will require a century to undo the adventures of the Warren Court into judicial legislation, many of which have yet to come to the surface and take dozens of small steps to correct. But Congress can reverse mistakes in a week. If they refuse to touch it, there's some reason which a workaround will merely delay.

Roe v. Wade was an example of doing the right thing for the wrong reason. Underneath it all, was Justice Douglas in 1965, legislating rights that Congress had been refusing to touch, and not stretchable from the Constitution. The real tragedy of Roe v. Wade has very little to do with abortion.