Classical liberals love to talk about limiting government power, but often forget to attend to doing this at the local level.
Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”
The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things, that the study leaves out regulatory decisions quite unfriendly to business.
But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect. Rather they appear to believe either that the correctness of decisions is irrelevant for their purposes or that law is indeterminate—just a vessel for politics. These are implications, to be sure; no direct evidence is supplied to clarify which is the case.
Take one of the areas that the Roberts Court in which it has been alleged to be pro-business: enforcing the Federal Arbitration Act. The Act is in fact a sweeping direction to enforce contracts to arbitrate. It clearly does not permit states to frustrate arbitration with laws that discriminate against the practice. Perhaps the Arbitration Act is a bad law, but the majority of the Court appears to be giving it full effect in their decisions. If the Court were giving a crabbed reading to an act in the civil rights area, law professors on the Left would be the first to criticize a narrow interpretation.
Antitrust law was indeed famously politicized in the New Deal. As Alan Brinkley’s The End of Reform discusses, the Roosevelt administration lurched from one theory of enforcement to another, making it impossible for businesses to plan. The Warren Court also provided little guidance, infamously suggesting in one paragraph in its Brown Shoe opinion that it would both consider the effects of mergers on competitors and that it would not. That kind of judicial decision certainly maximizes political discretion but undermines the rule of law. We should be grateful that antitrust now follows a coherent goal—maximizing the welfare of consumers—that does not put businesses at the whim of the political discretion of administrators or judges.
As Scott Shapiro shows in his fine book, Legality, a salient purpose of law is creating a plan that society can follow. Legal systems generate these plans to allow citizens of a polity to act even in a world with contentious moral and political disagreements. But if decision-makers consciously politicize law, that effort undermines law’s essential purpose, because it introduces into legal decision-making the endlessly disputed moral and political questions that laws are meant to resolve.
Teachout and other Leftists have every right to criticize decisions when they do not comport with law or to argue for changing the law. But politicizing the law threatens a stable and just social order.