The Atlantic - What I Most Regret About My Decades of Legal Activism

Like many women activists of my generation, I came of age politically by joining in the fight over reproductive rights. In 1986, I boarded a bus packed with other college students and rode from New Haven to Washington, clutching a handwritten cardboard sign that urged the Supreme Court to preserve Roe v. Wade. Later, in law school, I came to believe two things about the American legal system. First, its crowning achievement was the expansion of constitutional rights during the postwar New Deal era. In the 1950s, ’60s, and early ’70s, the Supreme Court found school segregation unconstitutional, protected the rights of criminal defendants, and put teeth on the First Amendment’s guarantee of free speech, among other landmark decisions. And, of course, there was Roe.

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Given my background, the reversal of Roe last year felt like a crushing blow. But as I reflect on my career in the law, my greatest regrets lie elsewhere. The progressive advances of mid-20th-century America weren’t, after all, only about civil rights and social justice. Equally important was the political-economic arrangement established during and after the World War II era. It featured a powerful regulatory state, aggressive antitrust enforcement, and strong labor unions. These policies kept corporate power in check and helped drive the fastest, most widely shared advance in living standards in American history.

I recognized the importance of this legacy—my first job practicing law was at a union-side labor-law firm—but it was not top of mind for liberals of my generation. It was for the other side. The conservative legal movement was just as intent on dismantling the political-economic achievements of the New Deal era as it was on reversing the rights revolution. And its leaders understood that they could leverage each goal to help achieve the other. To culturally conservative voters, they vowed to appoint judges who would overturn Roe. At the same time, much more quietly, they assured large corporations and economically conservative billionaires that these same judges would also be hostile to unions, business regulation, class-action lawsuits, and antitrust enforcement. The strategy brought huge numbers of culturally conservative voters into the Republican column while helping ensure a steady stream of campaign contributions from libertarian-leaning mega-donors such as Barre Seid—who recently gave $1.6 billion to a group founded by the Federalist Society’s Leonard Leo—and the Koch brothers. These patrons may be indifferent to abortion and supportive of other civil liberties, but they are above all convinced of the evil of business regulation.

That two-pronged approach has been highly successful, helping entrench a Supreme Court majority hostile to the social-justice and civil-rights agendas I spent my whole career fighting for. It pains me to recognize the extent to which progressives like me ignored it.