Today's Opinions, Tomorrow's Reality 

Supremely Aged

By David G. Young

Washington DC, July 9, 2007 --  

The Supreme Court's modernist-dinosaur divide is almost as striking as its more famous left-right divide.

After the Supreme Court issued its final decisions for the term last month, left-leaning pundits and legal scholars erupted in a full-blown panic about the new conservative majority. The conventional wisdom is that President Bush's new right-leaning appointments have shifted the balance on the court, making Reagan appointee Justice Anthony Kennedy the swing voter.

While there is some truth in this analysis, real life is never so simple. Viewed from another dimension, many of this year's decisions reflect not so much a divide between the right and left, but between the court's most obstinate dinosaurs and its more modernist members.

Consider for example, the case of Leegin Creative Leather Products, a manufacturer that had set minimum retail prices for its goods. For years, such a practice had been considered illegal price-fixing under the terms of the 1890 Sherman Anti-Trust Act, as interpreted by an earlier 1911 Supreme Court decision.1

In the decades after the Sherman act was passed, outlawing manufacturer-dictated pricing might have made sense. 19th century technologies like steel, oil, and telephones created monopolistic industrial behemoths like the U.S. Steel Trust, the Standard Oil Trust and the Bell Telephone Company, which tended to collude and fix prices in ways that hurt consumers.

But more than 100 years later, the economy no longer works this way. Not only do producers come from every corner of the globe, but thanks to the Internet, so do sellers. The modern tendency is for Internet stores to bring retail prices down to almost wholesale prices, and this fact is a key part of last month's ruling. Simply put, minimum pricing policies are absolutely no threat to consumers in today's economy. The conditions that justified the 1911 Supreme Court ruling on the issue simply no longer exist.

But good luck explaining this to the ageing left-wing members of the Supreme Court. When the Sherman Anti-Trust Act was passed long ago, America was a completely different place. It's named after the Senator and younger brother of William Tecumseh Sherman -- you might remember William as the man who burned Atlanta at the end of the Civil War. The law is a holy cow of older lefties, and the embodiment of the early 20th Century ideal of tempered industrial capitalism.

Justices John Paul Stephens and Ruth Bader Ginsberg, born in 1920 and 1933 respectively, were children of the Great Depression, when public suspicion over the power of industrialists was at its zenith. It's hardly surprising that admiration for the Sherman Act will always remain engrained with them. Younger generations, however, have less sympathy for policies dreamed up during an era when Americans were given medals for burning each others' cities.

A second ruling of this term shows a similar modernist-dinosaur divide. In its revision to the 50-year-old Brown v. Board of Education ruling, the court banned school integration programs that assign students to schools on the basis of race.2 With another sacred cow on the chopping block, the left-wing members of the court were livid. The older members of the court -- all of them except Thomas, Alito and Roberts -- came of age in the era before Brown, when black and white Americans were separated in school by the force of racist law.

Once upon a time, forced bussing on the basis of race may have made sense as a temporarily necessary evil to address extreme and entrenched racism. But it has been over a half-century since the Brown ruling. Exactly how long was this temporary measure supposed to continue?

In his scathing dissent, the oldest Justice, John Paul Stephens declared, "It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision."3 Perhaps so. But in case the Justice hadn't noticed, it is not 1975 anymore, and America has changed markedly. Segregation today is of an extremely different nature -- caused by localized school enrollment and the age-old voluntary clustering of people into ethnic communities. Whatever the solutions to today's social problems, the dust-covered ideas of the older Supreme Court justices simply aren't part of them.

To be perfectly clear, the Supreme Court's dinosaur-modernist divide is not the same as its left-right divide. The Court's most conservative member, Justice Antonin Scalia, is also its third oldest. While the rulings above divided more closely along left-right lines than the age of the justices, this is because outdated ideological beliefs tend to persist longer in the minds of those who are of the same ideological viewpoint. Simply put, people are quicker to see the flaws of a policy when they don't come from the same place ideologically.

It will take a few more years before America has younger left-wing justices commonly disagreeing with the ideas of Stephens as well as younger right-wing justices disagreeing with the ideas of Scalia. But rest assured, that day will come. The day of the dinosaur is over. The day of the dinosaur justices can't be far behind.

Related Web Columns:

Sherman's Grudgematch, November 4, 1997


1. Associated Press, Court Abandons Ban on Minimum Pricing, June 28, 2007

2. Washington Post, Divided Court Limits Use of Race by School Districts, June 29, 2007

3. Associated Press, Excerpts from Ruling in School Cases, June 29, 2007