Originalism and economic analysis: two case studies of consistency and coherence in Supreme Court decision making.

• Author: Ginsburg, Douglas H.

Some eighty years ago, then-Professor and later-Judge Jerome Frank purported to expose what he termed "the basic legal myth"--to wit, that judges decide cases by applying legal rules to the facts before them. (1) Frank reputedly went so far as to say that a court's decision might turn upon what the judge had eaten for breakfast. (2)

Fortunately, other judges have looked beyond the breakfast table for methodologies to promote consistency and coherence in judicial decision making. In this Essay, I discuss two such methodologies--one fully achieved and the other still in the making. I refer respectively to the influence of economic analysis in remaking antitrust law and of historical originalism in shaping constitutional law.

1. ECONOMIC ANALYSIS AND THE REMAKING OF ANTITRUST LAW

   Forty years ago, the U.S. Supreme Court simply did not know what it was doing in antitrust cases. The Court had read into the Sherman Act an assortment of vague and, ironically, anti-competitive social and political goals, such as protecting small traders from their larger, impersonal (and more efficient) rivals. (3) Judge Learned Hand characterized the goals of antitrust law as minimizing the "helplessness of the individual" and ensuring the "organization of industry in small units" for "its own sake and in spite of possible cost." (4)

   Then, starting in the 1960s, a generation of scholars developed what has aptly been called the "new learning" in antitrust economics. (5) Phillip Areeda at Harvard Law School, Robert Bork and Ward Bowman at Yale Law School, and Richard Posner and others at The University of Chicago Law School advanced the initially controversial view that the antitrust laws should promote economic efficiency and consumer welfare rather than shield from competitive market forces those whom Justice Peckham had deemed "small dealers and worthy men." (6)

   Starting in the 1970s, the Supreme Court began systematically reworking antitrust doctrine in order to bring it into alignment with the modern economic understanding of competition. In doing so, the Court has made Judge Frank's "basic legal myth" a reality. Where antitrust jurisprudence was once ad hoc and incoherent, the cases now follow simply stated legal norms. A number of trends in the Court's antitrust opinions reflect this transformation.

   First, as can be seen in Figure 1, (7) the fate of defendants in antitrust cases has improved substantially with every passing decade over the past forty years:

   During the decade beginning with the 1967 Term, defendants won thirty-six percent of the antitrust cases decided by the Supreme Court (sixteen of forty-four). In the next decade, defendants won forty-five percent of the antitrust cases (nineteen of forty-two), and in the decade beginning with the 1987 Term, antitrust defendants won fifty percent of their cases (nine of eighteen). During the most recent decade, defendants won all thirteen, that is, one hundred percent of the Court's antitrust cases. These figures reflect the Justices' increasing embrace of the economic approach to antitrust law, which--relative to approaches based upon amorphous sociopolitical goals--limits liability to those relatively few business practices truly inimical to consumers.

   The degree of agreement among the Justices in cases won by the defendant has also increased over the past four decades:

   [FIGURE 2 OMITTED]

   During the decade beginning in 1967, the Court decided only twenty-five percent of all its antitrust cases (eleven of forty-four) by a supermajority of six or more Justices in favor of the defendant. Over the following two decades, that percentage rose to thirty-six percent and forty-four percent, respectively. Finally, in the decade beginning in 1997, when the Court decided all thirteen cases for the defendants, a supermajority obtained in eighty-five percent (eleven of thirteen) of the cases. Over these same four decades, the percentage of all antitrust cases that the Court decided by a supermajority in favor of the plaintiff fell from fifty-five percent to zero. As these figures suggest, the economic approach to antitrust has conduced to clear and largely predictable outcomes in favor of defendants.

   Third, like the Court itself, the briefs filed by the Solicitor General on behalf of the United States as an amicus in private antitrust cases tended to favor antitrust plaintiffs more frequently forty years ago than they do today. And, as Figure 3 shows, the change does not correlate with changes in the political party of the President:

   Forty-five percent of the amicus briefs filed by President Reagan's Solicitors General supported the defendant; under President George H.W. Bush, the Solicitor General supported the defendant in sixty percent of his briefs; and under President Clinton that figure rose to sixty-seven percent (although many fewer briefs were filed). Under President George W. Bush the figure was ninety percent. The substantial and increasing support for antitrust defendants across those four administrations contrasts sharply with the consistently rare support for antitrust defendants during the three preceding administrations--fourteen percent under President Carter, eleven percent in the Nixon-Ford years, and thirteen percent under President Johnson. Clearly, what changed was the dominant understanding of antitrust economics, not the party in power.

   Finally, the Supreme Court's antitrust opinions have increasingly relied expressly upon the work of leading academic economists:

   The percentage of the Court's antitrust opinions that cite the new learning in antitrust law (defined as works by Phillip Areeda, Ward Bowman, Robert Bork, and Richard Posner) increased from thirty percent in the decade beginning in 1967 to sixty percent in the next decade and to more than seventy-five percent in each of the two most recent decades.

   The Court's reliance upon modern economic analysis reflects the near consensus among academics on proper antitrust analysis. There is now broad and nonpartisan agreement in academia, the bar, and the courts regarding the importance of sound economic analysis in antitrust decision making. Such analysis has utterly transformed the dialogue within the Supreme Court. Today, it is not uncommon to see briefs on both sides of a case making arguments based upon sophisticated economic literature. In some recent cases groups of independent economists have filed amicus briefs to offer their assistance to the Court. In a few cases, economists have filed amicus briefs taking opposing positions on the questions presented. Even in such cases, where there is no consensus among economists on the application of theory to facts, there is, nevertheless, virtually universal agreement among them--and among the lawyers for the parties--that the Court should answer questions of antitrust law by promoting consumer welfare and economic efficiency and not by making political judgments about economically irrelevant matters.

   Economic analysis does not indicate a single indisputable result in every case, but it does significantly constrain the decision making of the Court and thereby narrow the range of plausible outcomes. Economic analysis thus promotes consistency in antitrust jurisprudence. Armed with the new learning, the Court has revisited and revised many of the significant holdings of earlier eras that rested upon shaky foundations.

   The Court's initial embrace of the economic approach to antitrust followed directly from the scholarly work of Judge Robert Bork. In 1966, then-Professor Bork, having examined the legislative history of the Sherman Act, concluded that its authors understood the Act would promote consumer welfare, not the various sociopolitical aims that judges had read into it. (8)

2. HISTORICAL ORIGINALISM AND THE RESHAPING OF CONSTITUTIONAL LAW

   Judge Bork's attention to the original understanding of the Sherman Act and the Court's embrace of that view (9) brought order to antitrust law, and originalists have since applied that method to other areas of law. In his 1977 book, Government by Judiciary: The Transformation of the Fourteenth Amendment, my then-colleague Raoul Berger at Harvard Law School criticized the Warren Court's expansive interpretation of the Fourteenth Amendment as distorting--or simply ignoring--the intentions of the framers of that Amendment, as disclosed by the historical record. Berger argued that the Constitution depends upon judicial fealty to the original intention of the Framers: "A judicial power to revise the Constitution transforms the bulwark of our liberties into a parchment barrier." (10) And Attorney General Edwin Meese III brought the originalist movement into the world of legal policy in his 1985 address to the American Bar Association, in which he called for "a jurisprudence of original intention." (11) Justice Scalia, in his 1995 Tanner Lecture at Princeton University, later published in book form, clarified the point that the focus should be upon the original public meaning of the terms used in the Constitution and ratified by the states, not literally upon the intentions of its authors. (12)

   There is no question that, as it has evolved, originalism has had a profound impact upon American legal culture. In the past few decades, we have seen greater scholarly interest in the original meaning of legal texts in general and of the Constitution in particular. As Figure 5 shows, the number of law review articles adopting or critiquing an originalist perspective has greatly increased, judging from a search of article titles:

   [FIGURE 5 OMITTED]

   This focus upon original understanding proceeds from the simple insight that, in order to maintain the rule of law, judges must understand the Constitution as real law and not as a mere starting point from which to forge a path to their preferred...