Did Google, Facebook, and Amazon Endorse Jim Crow?
At the Supreme Court this week, big tech said most economic regulation for platforms are unconstitutional. And they used same logic as Robert Bork in attacking the Civil Rights Act of 1964.
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On Monday, the Supreme Court heard an important case challenging some of the fundamental ideas guiding our economic order for the last fifty years. It’s called NetChoice vs Paxton, and the question is whether the First Amendment of the Constitution bars economic regulation of tech platforms like Google, Meta, Amazon, and TikTok under the guise of free speech.
It’s a legal tussle with multi-trillion dollar implications. There are antitrust, privacy, civil rights, and speech liability claims against big tech firms working their way through the courts, and Congress and state legislatures are acting to address surveillance advertising and how these firms exploit children. This case threatens to disrupt some or all of these political actions, because the fundamental premise is the Constitution does not allow democratically elected officials to meddle in the business of private tech platforms, even if those entities are titanic corporations whose decisions have significant social consequences.
As the arguments unfolded, a host of interesting and weird questions arose. Does Facebook have a First Amendment right to racially or religiously segregate its services or build services that addict children? Big tech’s lawyer, Paul Clement, said yes. Can Google delete the Gmail account of Tucker Carlson or Rachel Maddow based on political disagreement? Again, another yes. Is Uber picking up passengers ‘expressive’ and thus shielded from regulation on the basis of the First Amendment? On this one, Clement said probably not, but did not rule it out.
You would think, based on common sense, that these questions make the case a slam-dunk. Yet it isn’t. And that’s not because the Supreme Court is unrepresentative of mainstream American legal thinking. In fact, the Supreme Court in this case is likely more open to populist notions than most civil society groups. There were dozens of briefs posted from third parties as varied as the ACLU, privacy-focused law professors, firms like Etsy, historians, civil rights groups, the U.S. Chamber of Commerce, and national security elites like General Stanley McChrystal, all supporting the tech giants. Their basic thinking is, we trust Google, not our elected officials.
Why is there such widespread support for a society run by big tech? The answer has to do with the enduring influence of Robert Bork, the legendary conservative antitrust lawyer, whose birthday was yesterday. So the NetChoice case, and Bork, is the topic of today’s piece.
That said, while it’s Bork’s logic that all of these groups are using, it’s not just, as you might expect, his logic on antitrust. Instead, you can find the roots of NetChoice in Bork’s high-profile opposition to the Civil Rights Act of 1964, in which he endorsed racial segregation, as long as it was privatized. So in this piece, I’ll also walk through his full social vision, which has reverberated on both the right and left, and in many ways created the modern American corporate state, especially big tech. This case is the perfect way to do that, and also show why the ideas he put forward are losing their grip on America, even in, surprisingly enough, conservative areas.
Let’s dive in.
“I am not as discouraged as people think I should be. I think our general attitude should be that of the Bolsheviks after 1905.” - Robert Bork, after Barry Goldwater’s loss in the 1964 presidential election
Building a Coalition for Monopoly
The year that made Robert Bork’s career, and began his quest to put together the coalition that transformed American thinking on corporate power, was 1963. That year, Bork, a young Yale law professor, had three pivotal pieces of writing that got the attention of key constituencies who would come to back the Reagan Presidency seventeen years later.
The first was a speech to the New York City Bar. A few years earlier, GE and Westinghouse executives had gone to jail for colluding on prices of electrical equipment, which paved the way for enforcers to use price-fixing as a criminal sanction much more aggressively. Bork attacked this approach, arguing that the use of criminal sanctions for price-fixing was an “unjust and an emotional overreaction” to legitimate business behavior. His speech was so favorably received in the corporate bar that it drew a letter from Kirkland and Ellis founder Howard Ellis, who wrote Bork gratefully, “Thank you so much for your paper defending the ‘Malefactors of Great Wealth.’” Young corporate lawyers, the pool of future judges, took note of this pro-monopoly framework.
The second was a Fortune article titled ‘The Crisis in Antitrust,’ the forerunner for his book The Antitrust Paradox, in which he said that antitrust, by protecting small business, was inefficient, and harmful to consumers. The article made a splash, attacked on the House floor by anti-monopoly Congressman Emanuel Celler. By contrast, corporate executives, avid readers of Fortune, lapped it up. Bork was soon offered speaking opportunities and lavish fees, as well as research grants from big corporations, and an invitation to the prestigious American Bar Association Antitrust Section.
But the most important piece, and one he never lived down, was an article he wrote in the New Republic titled “Civil Rights—A Challenge,” a criticism of what would become the the Civil Rights Act of 1964 that prohibited racial segregation in hotels and restaurants. This piece generated adulation among Southern white elites. As one South Carolina banker wrote Bork, “For us to have a Goldwater man at Yale is indeed encouraging.”
In this article lambasting the Civil Rights Act, Bork’s critique was not that racism was good; indeed he wrote that he found it personally abhorrent. But, he said, the state had no role in dictating the terms by which business people used their private property. "The legislature would inform a substantial body of the citizenry,” he wrote, “that in order to continue to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate." This state dictate he could not abide, as however much he sympathized with victims of segregation, a majority telling a minority how they could act was “likely to be subversive of free institutions.”
It was an absurd argument, for a few reasons. First, it was obviously endorsing a racist terrorist regime in the South, just eighteen years after World War II. As one critic put it, Bork overlooked a “recent costly experience the world had to undergo with people who built a plan of world conquest around a theory of a master race and policies of racial discrimination.” The second reason, as The New Republic editors noted, was more subtle. Despite Bork’s supposition otherwise, it had never been the case that private property was immune from public obligation. Here are the editors of The New Republic, explaining it was simply not true that those who owned public accommodations facilities could serve whoever they pleased before the Civil Rights Act:
For centuries English common law obligated innkeepers to accommodate any well-behaved traveller, and his horses. Most states have today embodied this tradition in public accommodation statutes. In the North, these statutes generally require a restaurant, hotel or motel to accept all sober and orderly comers, regardless of race. In the South, Jim Crow legislation enacted at the end of the nineteenth century until recently required the owners of public establishments to segregate their facilities.
In other words, Bork was wrong on two counts. First, owning certain forms of private property, so-called common carriers, had always compelled a duty to deal with the public on terms set by the public, which usually meant all-comers. Second, a legal regime like Jim Crow was in itself a form of common carrier regulation imposed on business owners, insofar as it mandated racial segregation on all who sought to do business with the public by offering public accommodations.
Bork, in other words, didn’t just argue against the Civil Rights Act, but erased two inconvenient historical truths as he did so. First, he pretended the thousand year tradition of common carriage going back to the Middle Ages didn’t exist. Second, he rewrote the history of Jim Crow not as a legal regime mandating segregation, but as a regime based purely on the personal preference of millions of people in the South. He was redefining the limits of politics, the very nature of the American experiment in self-governance. The fight over civil rights had been over common carriage, over which racial hierarchy to embed in the obligations that businesses owed to the public. Bork sidestepped it, arguing, in effect, that common carriage itself was the problem.
These arguments had a powerful political impact. The South had always supported public utility rules and antitrust, because Southerners saw these legal tools as checks on the overwhelming force of Northern capital. Franklin Delano Roosevelt was beloved by southerners because he attacked Wall Street as an ‘informal economic government of the United States’ that had led America to ruins. They loved that he proffered traditional populist rules across the board, on Wall Street, in airlines, railroads, electric power, trucking, antitrust, labor, etc, to take back power, rules that rested on a tradition of common carriage, or public authority over private property.
But race could turn this attitude on its head. In 1963, Bork framed racial integration as a form of common carriage, and this argument blew up this anti-monopoly political tradition in the South.
Goldwater and Lenin
Elite lawyers with a liberal bent were outraged at Bork’s article, and the criticism irked the conservative scholar. But miffed as Bork was, the piece did what it was supposed to, catapulting him to legal superstardom. In 1964, he became a key advisor to conservative Republican President nominee Barry Goldwater, who broke the traditional Northeast Rockefeller control of the GOP. For a political weapon, Goldwater wielded his position, based on Bork’s theory of property rights, that the Civil Rights Act was an unconstitutional infringement on the liberty of property owners.
In the general election, Goldwater lost overwhelmingly to LBJ. And most conservatives felt their movement, which finally had real representation in one political party in the form of Goldwater, had been crushed. Bork, however did not. Goldwater had taken the Deep South from the Democrats, and that was the future bedrock for a conservative political majority. “I am not as discouraged as people think I should be,” he wrote to a colleague. “I think our general attitude should be that of the Bolsheviks after 1905.” And indeed, Bork was prescient. He had articulated a vision of concentrated capital, stripped of any public controls, that could attract constituency groups who had traditionally opposed each other, Wall Street elites centered in New York, and the Southern white voters who were suspicious of Northern influence.
Nothing like Bork’s economic framework had ever been taken seriously on the American scene; not even in the roaring 1920s would anyone reject the idea of public utility rules as a foundational element of statecraft. But in the 1970s, what Bork and his ilk offered - no public controls on concentrated capital - seemed to be able to fix what ailed the inflationary American economy, as Chicago School solutions were framed around low prices. The deregulatory push helped unify the Southern backlash to civil rights with Wall Street anger against common carriage and antitrust rules, by melding disguised discourse on race with the language of a finance-heavy vision of capital rights and anti-statism.
Enter the Left
But Bork was not done. His fourth, and in many ways most important constituency, was the left, in the form of the consumer rights movement. In the 1970s, the mass of college educated baby boomers had been raised on a diet of books by (among others) socialist economist John Kenneth Galbraith, who argued that we no longer had to concern ourselves with the corporation, since the problems of generating wealth had been solved.
Robber barons, Galbraith put out in a PBS series, had been a cartoonish and boorish group, but not particularly dangerous, a phase in the transition of capitalism to the smooth corporate state of the modern era. Corporate power, he argued in American Capitalism, inherently and naturally generates its own countervailing power, and thus America was naturally run by Big Business, Big Labor, and Big Government, with all sharing in the bounty of affluence. Liberals, Galbraith argued, should focus on consumerism and environmental beauty, a message the generation saw embodied in a crusading Ralph Nader.
Bork found a way to entice this generation by using the term ‘consumer welfare’ in antitrust. It was an alluring phrase for the consumer rights movement of college educated Northeasterners, who shared with Bork a veneration for economic experts, a dislike of economic populism, and a disdain for small business. (The Nader project’s 1970 book lacerating the FTC called small businesses “the ‘noble savages’ of the business community,” mocked the commission for lacking enough Ivy League graduates, and directed the government to only focus on helping consumers, not small business.)
In the middle of the 1970s, in the backlash to Nixon, a wave of these liberals got into Congress. And they took aim at laws that prevented price discrimination by big discounters, with the thought that discounters could lower prices and help inflation. But they didn’t know or care that price discrimination was a tool to consolidate power in the hands of chain stores, who could use Wall Street capital to lower prices in certain areas to kill independent competitors, and then use bargaining power to get favorable prices from suppliers. One small business lobbyist was horrified at the new Democrats, noting, “These are the people that wouldn’t think of committing discrimination in a sociological context and that would horrify them, but in an economic context, it becomes the thing to do.”
After unleashing stores like Walmart, the Watergate Baby generation, spurred by Nader, then pushed aggressively for deregulation in banking, trucking, and airlines, all for the benefit of the consumer. Pretty soon, all forms of price discrimination were legal, except those based on race or gender.
The pro-consolidation framework also intersected with mid-20th century First Amendment law, which had been designed around broadcast regimes. In 1976, the Supreme Court struck down limits on campaign expenditures, explaining that spending money on political ads was a form of speech. (This decision paved the way for Citizens United decades later.) That same year, in another Supreme Court case, a Nader group argued restrictions on firms advertising drug prices were an abridgment of speech and harmed consumers by not allowing them to ‘hear’ about better deals. These were pivotal cases in creating the corporate right to free speech upon which NetChoice rests. Interpretations of the First Amendment began turning away from protecting speech in the context of regulated 20th century broadcast networks, and towards protecting capital disguised as speech.
By the late 1970s, Bork, and the Chicago School of law and economics, had brought the whole country to his vision of removing controls on capital. It was far bigger than an economic vision, it was a political vision of Wall Street as the nation’s rightful ruler, with electoral politics shrunk to symbolic social questions. But it had broad acceptance. Each section of Americans saw in this project what they wanted to see, but they were nonetheless united on the importance of letting big business alone, with a few tussles here and there over tax policy or labor unions. When Ronald Reagan won the Presidency, he nominated Bork for the Supreme Court. Bork was never confirmed, but he had, in some senses, won anyway. And this shift became obvious when a Democratic President finally took power in 1992, and doubled down on deregulation. Bill Clinton, it turns out, had been Bork’s student at Yale Law.
The informal economic government of the United States was back.
Enter Big Tech and NetChoice
In NetChoice vs Paxton, the Supreme Court must now wrestle with the contradictions embedded in Bork’s vision. The details of the litigation are as follows.
In 2021, Texas passed a law mandating that social media platforms with over 50 million American users could not discriminate against users based on viewpoint, a clear reaction to Trump being banned from social media after January 6th, and a sense of victimization by conservatives who perceive big tech firms as run by progressives.
The Texas law is complicated, but it mandates a number of common carrier obligations on social media platforms. Such firms must explain their content moderation policies, provide information on how often they take down user content, and provide a complaint and appeals procedure for users whose content is taken down. Furthermore, social media giants are no longer allowed to remove content or bar users purely based on viewpoint (though there are exceptions for content that is illegal, incites violence, is the subject of law enforcement, and so forth.) This law is a return for Texans to the common carriage tradition, based on echoes of populists from the 1880s that outside capital, this time in the form of big tech, has no business structuring their commerce.
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NetChoice is a lobbying group financed by Google, Facebook, Amazon, and TikTok, and it primarily litigates against public rules designed to constrain such firms. Its budget is significant, equaling around 15% of the government’s entire Antitrust Division. NetChoice immediately sued to block the law, as well as a similar law in Florida. Big tech firms at first tried to portray this lawsuit as a partisan tussle, since Texas was trying to stand up for political conservatives against progressive big tech firms. But that failed, because there are a host of other common carrier-like laws, like California’s California Age-Appropriate Design Code Act mandating child-safe websites, that NetChoice has also sued to block. And dozens of state attorneys general, many of them Democrats, told the court as much. (My organization, along with five prominent scholars, filed a similar brief.)
NetChoice hired former Bush administration U.S. Solicitor General Paul Clement to make their case. And he pursued a scorched earth litigation strategy, arguing that Texas’s law, and any such law imposing obligations on big tech platforms, was unconstitutional. The implications of such a claim are profound, shielding platforms from any rules against addicting kids to digital services, engaging in discrimination through algorithms, or regulating AI. All would become protected speech, beyond the reach of any legislative body.
On Monday, a majority of the Supreme Court wrestled with how to reconcile today’s corporate First Amendment regime with a recognition that a Constitutional shield for Google’s behavior goes too far. While all were sympathetic to the idea that content moderation by multi-trillion dollar advertising firms is speech, they just couldn’t figure out how to mash that view with anything resembling common sense.
Justice Gorsuch, for instance, asked whether “algorithms designed specifically to try to attract teens to addiction or suicide, depression, those kinds of things” were protected free speech and thus could not be regulated by the state. Clement answered, “Sure.” Justice Barrett asked whether big tech firms could ban people based on religion. Again, the answer was yes, if Google wanted to only let Catholics on its platform, it had a First Amendment not to “let Protestant[s] into the Catholic party.”
Google’s logic is the same logic Bork used in his piece from 1963 justifying the right to discriminate against black people in restaurants and hotels in the South. At one point, the question came up as to whether Uber’s choice to serve some customers and not others was a politically expressive act. The corporate First Amendment, in other words, swallowed everything else.
Over and over, NetChoice’s lawyer said that Google could do whatever it sought, under the shield of free speech. “Does Gmail have a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with her -- his or her viewpoints?” The answer? “They might be able to do that.” And doing so on the basis of race? Yup, that too.
The case is set up for NetChoice to win, as most justices felt these trillion dollar firms, as private entities, had strong First Amendment protections, which is consistent with the last fifty years of thinking about property rights and speech. Moreover, none of them were particularly interested in the common carriage idea, again driving on the intellectual road that Bork paved.
Despite this legal tradition, most simply couldn’t accept the idea that Google has the right to deny Gmail to anyone it chooses. Moreover, common carriage came up in the form of a law, Section 230 of the Communications Decency Act, that immunizes platforms from having to be liable for the speech of their users. Justice Gorsuch and Alito did confront Clement on the contradiction of tech platforms on speech that travels over their network, asking why tech platforms get First Amendment protection for editing their users’ speech, but don’t have to carry liability for that speech.
The logic of common carriage, in other words, is so powerful that it pushes back against fifty years of deregulation and corporatized legal thinking, even among people who wish it wouldn’t. (I should note, John Roberts and Brett Kavanaugh seemed to lean strongly towards Google, while the other seven were asking hard questions of both sides.)
Has the ACLU Has Been Bork-ified?
Legal disputes like NetChoice rest upon more than just interesting intellectual questions, or judges, but on a broad foundation of civil society, the different institutional stakeholders in America. To understand the extent of Bork’s intellectual staying power, it helps to look at what are called amicus briefs with the Supreme Court, which is to say, third party lobbying documents trying to convince the judges to think of a case in a certain way. I went through a bunch of these briefs for the NetChoice case, and it became obvious very quickly just how baked into our government Bork’s ideas, and those of big tech, have become.
It wasn’t just Google making the argument Bork made in justifying the right of private parties to do whatever they sought, which in 1963 meant racial discrimination. Many civil society groups did. Today, of course, the argument is flipped; no one argues for the right to be racist, but for the right to be anti-racist. But both were saying the state should have no role in digital spaces, that common carriage rules to foster public spaces are intrinsically bad. Private actors should govern, not elected ones.
As with different segments adopting Bork’s ideas for different reasons, different groups supported Google, et al for different reasons. Unsurprisingly, a lot of corporations, from trade associations representing the New York Times and CNN to movie studios to Discord to TripAdvisor, weighed in, over fear the government might regulate them, even though in other contexts they might seek regulatory action against big tech. Many libertarian think tanks, and business groups like the U.S. Chamber of Commerce, did as well, though that is less surprising.
Some groups, like the American Civil Liberties Union, are unable to get beyond consumerism. The ACLU could not tell the difference between money and speech, and has no way to distinguish between a bookstore and Google. Others, like “Democracy” protection scholars Richard L. Hasen, Brendan Nyhan, and Amy Wilentz, place their faith in Google/Facebook to protect the country from what they perceive as a tyrannical government controlled by Trump. “Without such content moderation decisions,” they wrote about the decisions after January 6th, “the post-election violence could have been far worse and U.S. democracy imperiled.”
Indeed, there was an attitude of dependency on big tech versus our own elected officials that struck me as quite remarkable. The American Jewish Committee, The Lawyers Committee for Civil Rights, and the Anti-Defamation League all argued they relied on big tech platforms and their armies of content moderators to protect against discrimination. Similarly, former national security officials, such as General Stanley McChrystal, former FBI Director Andrew G. McCabe, ex-Lt. Gen. James R. Clapper, and many others said that “our nation’s security depends upon” the content moderation efforts of social media to stop the spread of “terrorist content and harmful mis- and disinformation,” and that these laws “significantly restrict the ability of social media platforms to undertake this important work.”
Orthodox journalistic scholars, like the Knight First Amendment Institute at Columbia University, have a cramped mid-20th century view of technology, arguing that “social media platforms’ content moderation decisions are protected by the First Amendment because they reflect the exercise of editorial judgment.” Democratic Senators, such as Senator Benjamin Ray Luhan and Ron Wyden, also filed in favor of big tech. (I’ve included a fuller list of amicus briefs supporting Google below the post-script.)
None of these groups fully appreciated the stakes of what it might mean if democratically elected bodies have no say over how our public spaces operate, how our children get information, how we communicate with one another, or how big tech firms might deploy new technology such as AI. Few of them took seriously the implications of a version of the Constitution in which Uber’s business decisions could be considered a politically expressive act, even though the First Amendment can be read without limits.
And the Supreme Court struggled, because we allowed the internet to emerge with weak to non-existent common carriage or anti-monopoly rules, and have shielded tech platforms from traditional tort law since 1996. So there just are no clear lines between what is actually speech, and what isn’t, and there isn’t great caselaw on how to draw those distinctions. NetChoice is asking for the simplest solution. Just call it all speech, and foreclose any possibility of imposing any rules at all on multi-trillion dollar platforms. That may happen. It would be easy. But it would also be wrong. Based on what I heard, most justices understood that, but were trying to figure out where to go next in rejecting Bork’s thinking.
And to that I would say, welcome to the club.
Thanks for reading! Your tips make this newsletter what it is, so please send me tips on weird monopolies, stories I’ve missed, or other thoughts. And if you liked this issue of BIG, you can sign up here for more issues, a newsletter on how to restore fair commerce, innovation, and democracy. Consider becoming a paying subscriber to support this work, or if you are a paying subscriber, giving a gift subscription to a friend, colleague, or family member. If you really liked it, read my book, Goliath: The 100-Year War Between Monopoly Power and Democracy.
cheers,
Matt Stoller
P.S. Below is a partial list of the amicus briefs in support of NetChoice.
Scholars: Francis Fukuyama, Christopher Yoo, Historians Jeffrey L. Pasley, University of Missouri; Sheila L. Skemp, University of Mississippi; Jeffery Smith, University of Wisconsin-Milwaukee; David Waldstreicher, City University of New York, Joseph M. Adelman: Framingham State University, Carl Robert Keyes, Assumption University; Robert Parkinson, Binghamton University
Law professors Eric Goldman, Jonathan Weinberg, Steven P. Tapia, Pamela Samuelson, Aileen Nielsen, Art Neill, Yvette Joy Liebesman, Mark A. Lemley, Kyle Langvardt, Kate Klonick, Michael Karanicolas, James Grimmelmann, Paul Gowder, Brett M. Frischmann, Justin Firestone, Joshua Fairfield, Ralph D. Clifford, Anupam Chander, Zachary Catanzaro, Nina Brown, Mark Bartholomew
Lobbying Groups and Think Tanks
Right-leaning: U.S. Chamber of Commerce, Goldwater Institute, Cato Institute, Washington Legal Foundation, Liberty Justice Center, Foundation for Individual Rights and Expression (FIRE), The Center for Growth and Opportunity, Freedom Foundation of Minnesota, Illinois Policy Institute, Independence Institute, James Madison Institute, Libertas Institute, Mountain States Policy Center, Oklahoma Council of Public Affairs, Pelican Institute for Public Policy, R Street Institute, Rio Grande Foundation, and The John Locke Foundation, Americans for Prosperity
Ethnic: American Jewish Committee, The Lawyers Committee for Civil Rights, Anti-Defamation League
Left-leaning: Electronic Frontier Foundation, Public Knowledge, Reporters Committee for Freedom of the Press, American Civil Liberties Union, American Booksellers Association, The Authors Guild, Phoenix Center for Advanced Legal and Economic Public Policy Studies
Corporations
Mozilla, Glassdoor, Nextdoor, Pinterest, Tripadvisor, Vimeo, Tumblr, Yelp, Discord, Bluesky, Techdirt, Marketplace Industry Association, eBay, Etsy, Angie’s List, BabyQuip, Care.com, Bambino, Hop Skip Drive, MeetCaregivers, and UShip, Reddit Moderators
Media Law Resource Center, whose members include CNN, the New York Times, Netflix, HBO, ABC News, and NPR
National Security
Matt,
First, thank you for going in depth in answering exactly the question I was baffled by earlier this week. I know it wasn't just for me, but I'm tickled pink nonetheless. To make it even better, this is one of your most educational pieces I've ever read – and to put that in context, I've crawled through much of your back archive, and you're the most educational jobrnalist I know even on your run-of-the-mill days. Bravo!
I hope this doesn't go down in history as one of those Supreme Court decisions that we all know shouldn't have been and needs to be reversed but takes decades to get fixed if it ever does. I mean, you allude to Citizen's United here too…
Did any of the Conservative amicus briefs urge that the court not rule against the law simply for sake of, as Conservatives put it, not "legislating from the bench"? You write a lot about the whole legal battle as the expression of our democratic system, and I want to believe you (antitrust is pretty much the only hope for the country I have left!); but if I may offer another example of the issue of how we structure our society and the question of whether our elected lawmakers rule… there's the fact that the law and any political decisions dependent on it is subject to the legal philosophy opinions of a tiny team of unelected officials in the first place. (I'm not sure who I want enforcing the Constitution, I'll admit. The trouble with pointing to the Constitution as a bulwark against tyranny is someone's got to actually enforce it. But there's only so meta I can go here.) Sorry, not trying to be a downer – just saying, for comparison, Conservative judges are normally so hung up on this meta issue they couldn't even bring themselves to limit or remove Obamacare, and I'm sure you remember how they felt (probably still feel) about that law… Surely someone pointed out the "don't overrule the law itself, that's not your job" argument they're normally sympathetic to? Surely it's not just me, Joe Blogreader in the combox, who's thinking about this?
Aside, a _huge_ Thank You to your org and all others who weighed in against a partisan reading of the case. One of the most demoralizing experiences in the past decade has been watching at least half the people I know come around to a populist consensus on actual policy (maybe it's the peculiar circles I move in but the rightwingers I know in real life quietly comment on how they now believe what they're up against is fascism, and they mean the behavior of Big Business, not "well akshully lefties are the real fascists"; though ironically, right-wing antifascists seem to be the people most likely to get labeled "fascist" now), only to watch in horror as some of the other people I know literally flipflop on their positions rather than give up the chance to dunk on or demonize their political enemies. I can't tell you how heartening it was, after all the social fallout in my communities and a deeply personally trying past several years, to see a whole slew of political influence cross the aisle to advocate for a bipartisan handling of this issue. I'm almost not sure if I'm happy or in shock but thank you!
Finally, the history section of this article has inspired me to write one of my own. There is a tie in here (actually more than one) that you probably haven't heard, to earlier history and religious philosophy on the other side of the Atlantic. And it affords a nice opportunity to try to pull more of my Conservative friends back over to the antitrust tradition! If I can get it published somewhere (I have a few ideas) – if I can manage to sit down, dig up some good supporting quotations (I know enough background to be confident they're there), and hammer it out in the first place – I'll be sure to share it later.
In conclusion, fantastic work and fantastic reporting; keep fighting the good fight, sir!
Nah. It’s not about Bork. It is about “difficulty”. It is about how doing the right thing is difficult; regulation is difficult; adjudication is difficult, behavior is difficult, control is difficult, enforcement is difficult. We are in a social period where we can’t be bothered with difficult so we gravitate to easy and we can get easy and avoid difficult by using the cover of things like the first amendment. And, we are in an environment where most everything is so complex and interconnected that doing the right thing is de facto difficult.