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The Warren Court: a Distant Mirror? Part One—The Chief

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The Warren Court: a Distant Mirror? Part One—The Chief Antitrust , Vol. 33, No. 2, Spring 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. established the one-man, one-vote principle, expanded the rights of criminal defendants, bolstered free speech, and protected the right to disseminate and access birth control information. 3 Without the Warren Court, the United States would be a very dif - ferent place than it is today, with Americans having far fewer rights than they now do. During Warren’s tenure, in the area of antitrust, the Supreme Court continued down the path it had pursued since the end of World War II under the leadership of his two immediate prede - cessors, Harlan Fiske Stone and Carl Vinson. Under both Chief Justices, the Court established a record of voting consistently in favor of both the government and private plaintiffs in antitrust TRUST BUSTERS cases. 4 The most notable of the Court’s post-World War II deci - sions in support of strong antitrust enforcement were its 1946 ruling in American Tobacco ,5 finding the country’s leading tobac - The Warren Court: co producers guilty of a criminal violation of Section 2 of the Sherman Act for conspiring to raise cigarette prices despite A Distant Mirror? declining demand; its 1948 rulings in Griffit h 6 and Paramount Pictures ,7 requiring the restructuring of the movie industry after Part On e—The Chief: finding that vertical integration by filmmakers into theatre own - ership was an act of monopolization in violation of Section 2; and its 1951 ruling in Timken Roller Bearing ,8 finding a market allo - Earl Warren cation agreement between U.S. and foreign producers of roller bearings used in aircraft through a sham joint venture per se ille - BY WILLIAM KOLASKY gal under Section 1. The Warren Court established an even stronger pro-enforce - HEN CHIEF JUSTICE CARL VINSON DIED ment antitrust record than its two predecessors. Under Warren, suddenly in September 1953, his death put the the Court ruled in favor of the government in 34 of 37 govern - new president, Dwight Eisenhower, in a quandary. ment antitrust cases and in favor of the plaintiff in 18 of 24 pri - WIn return for his support at the 1952 Republican vate antitrust actions, thus ruling for the plaintiff in 85 percent Convention, Ike had promised Earl Warren that he would appoint of the antitrust cases that came before it. Through its decisions, him to the first vacancy to open on the Supreme Court, never the Court vastly expanded the scope of the per se doctrine to expecting it to be the position of Chief Justice. Ike knew that include not only horizontal price fixing and market allocation Warren, as Governor of California, had been a far more progres - conspiracies, but also most vertical restraints. It established a sive Republican than Eisenhower. Eisenhower therefore tried to strong presumption of illegality under Section 7 of the Clayton Act wiggle out of the commitment he had made, but Warren would not for both horizontal and vertical mergers of companies with more let him, so Eisenhower ended up appointing Warren to replace than a de minimis share in any market in which there was a trend Vinson. Within a few years, as Warren’s liberalism became even toward greater concentration. It extended the reach of Section 7 more evident from his leadership on the Court, Eisenhower to conglomerate mergers, applying new theories of competitive reportedly told friends that appointing Warren was “the biggest harm to do so. The Warren Court also ruled consistently in favor damned-fool mistake” he ever made. 1 of strict enforcement of the Robinson-Patman Act’s ban on most Many others would disagree. By the time Earl Warren retired forms of price discrimination. 16 years later, the Supreme Court, under his leadership, had During the last several years of Earl Warren’s tenure, there done more in the view of many to protect “the individual rights began a backlash from antitrust scholars who felt that the Warren and equality of all Americans” than any previous Court. 2 Among Court had overshot the mark in its broad use of the per se doc - its many accomplishments, the Warren Court integrated schools, trine, its record of ruling for the government in every merger case that came before it, and its rigid application of the Robinson- Bill Kolasky is a Partner in the Washington, D.C. office of Hughes Hubbard Patman Act. This backlash started with a series of articles pub - & Reed LLP and Chair of the firm’s Antitrust and Competition practice. He lished by Robert Bork and Ward Bowman in the mid-1960s. 9 It wishes to acknowledge the significant contributions and assistance of his then gained traction as other well-respected antitrust scholars colleagues Nicole Sarrine, James Canfield, and Jennifer Chang in research - echoed and amplified those criticisms in a series of law review ing, drafting, and preparing this article. The title of this series of articles is articles published between 1968 and 1975. 10 This wave of criti - borrowed from the title of Barbara Tuchman’s history of fourteenth centu - cism reached its peak with the 1978 publication of Robert Bork’s ry Europe during the period of the Black Death, BARBARA W. T UCHMAN , A The Antitrust Paradox ,11 which, although largely a compilation of D ISTANT M IRROR : T HE C ALAMITOUS 14 TH C ENTURY (1978). his earlier articles, pulled them together in a way that produced SPRING 2019 · 81 ARTICLES Warren’s father, a lineman for the Southern Pacific Railroad, was blacklisted by the railroad for joining a strike. This ongoing debate makes 2019—50 years after Warren was “a handsome youngster, [with] blond hair tou - Earl Warren retired as Chief Justice—a good time sled, a straight nose and finely drawn bones.” 21 As a teenager, he was more interested in sports and social activities than in his to look back at the Warren Court to see what, coursework and “squeaked by in high school with admittedly if anything, we can learn from its approach mediocre study habits.” 22 Warren spent his summers working for the Southern Pacific, where he had “watched in horror as men to antitrust. were crushed between cars and carried in agony to the workplace lathe,” where their limbs would be “cut clean off with the work - place blade.” 23 He remembered later as Chief Justice that he a highly influential critique of the Warren Court’s antitrust juris - “always recoiled against these inequities” and “wanted to see pru dence. them wiped out.” 24 Influenced by these and other articles criticizing its decisions, Despite his mediocre academic record, Warren was admitted many have dismissed the Warren Court years as “the dark ages” to Berkeley, where again he focused more on sports and com - of antitrust, an era before the light of modern economic science panionship than on his studies. He was described as an “extro - illuminated antitrust doctrine. 12 Today, most antitrust lawyers vert, hearty and boisterous in his politics and his friendships.” 25 and economists have come to accept as gospel Robert Bork’s Warren slid by with little effort and was admitted to Berkeley’s law formulation that the antitrust laws are “a consumer welfare pre - school, where he once again graduated without distinguishing scription, ”13 whose sole purpose is to protect “consumer wel - himself. fare,” by which Bork really meant economic efficiency, and not the After serving briefly in the Army near the end of World War I, protection of smaller, less efficient competitors. 14 Ironically, one Warren thought of beginning a private practice in Oakland, but of the most often cited bromides capturing this idea is a sen - accepted a job in the office of the Oakland city attorney before tence from Warren’s opinion for the Court in Brown Shoe stating he had landed a single client. Warren would spend the rest of his that the purpose of the antitrust laws is the protection of “com - life, up until his retirement as Chief Justice in 1969 at age 78, petition, not competitors. ”15 Those quoting this language gener - as a government employee. ally overlook that Warren added in the very next sentence: “But we cannot fail to recognize Congress’ desire to promote compe - A Corruption-Fighting Prosecutor tition through the protection of viable, small, locally owned busi - Warren quickly moved from the city attorney’s office to the district ness. ”16 attorney’s office, where he could try cases on behalf of the state, Today, during a period in which many believe there is rising fulfilling his dream of becoming a trial lawyer. After working as a economic concentration and declining economic opportunity that line prosecutor for five years, Warren was elected district attor - some call a New Gilded Age, 17 a growing number of antitrust ney for Alameda County, where Oakland is located, in 1925. He activists have begun to question whether we have moved too far held that position for 13 years, building a reputation as a “stal - in the direction of considering only the price effects of allegedly wart, corruption-fighting prosecutor undeterred by political pow - anticompetitive conduct or transactions that are likely to increase ers in his quest for clean government. ”26 the level of concentration in any industry. Calling themselves Warren’s growing reputation for fighting corruption made him the New Brandeisians, these antitrust activists argue that the a natural candidate for California Attorney General in 1938, a antitrust laws should also be concerned with the socioeconom - state in which corruption was still common.
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