Caroline Fredrickson, a veteran of the legal Left, says her movement, and she personally, put too little emphasis on economic issues and too much on social ones during the last generation. They criticized conservative nominees over abortion law, not antitrust law, and they vetted liberal nominees on the same basis. The result, she argues, has been a comprehensive defeat.
The Democratic appointees are still more liberal on economics than their Republican-appointed colleagues, but they’re far to the right of their own liberal predecessors.
In a 2003 antitrust case, for example, all of the liberals joined an opinion by Antonin Scalia that declared, “The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system.” In 2017, Breyer wrote the majority opinion in a case upholding the right of debt-collection companies to go after people for money they no longer owed. The same year, Sonia Sotomayor wrote an opinion that limited the Securities and Exchange Commission’s power to force those found guilty of securities fraud to give up their stolen gains. . . .
By delivering measurable wins to business-side conservatives, they have helped fuel an engine designed precisely to unravel the civil rights they held so dear.
Two of those decisions were unanimous. I would not rule out the possibility that the justices unanimously got the legal issues wrong, but I’m inclined to think they got it right absent a strong counter-argument. And “letting economic conservatives win in court will have political consequences I oppose” doesn’t seem like a legal argument at all.