To be sure, there is a great deal of truth in Bork’s critique of the Warren Court and other past judicial excesses. Prior to the ascendance of originalist methodology, justices and judges did regularly depart from the original meaning of the constitutional text and enshrine social policy preferences in law. But Bork’s position in The Tempting of America represents a kind of arch-formalism that masks an important reality: no one—and certainly no judge—stands wholly outside the set of background assumptions they bring to the judicial task.
Indeed, Bork’s own argument in The Antitrust Paradox is a case for the value of economic rationality as an “objective” interpretive principle for the federal antitrust laws. Bork’s defense of the consumer welfare standard was rooted in an effort to strip problematic elements of ambiguity from the task of judicial interpretation—for ambiguity, of course, is an invitation for judicial mischief-making. Better, rather, to focus on something that can actually be quantified, like consumer price within a defined market. If the eponymous tempting of America is the judicial “habit of legislating policy from the bench,” does not The Antitrust Paradox offer such an object of judicial desire?23
Largely absent from Bork’s picture of judging is any conception of what Aristotle called phronesis—or practical reason—the analytical faculty by which one acts to apply principles gleaned from experience to new and contested circumstances that do not fall seamlessly within prior categories. Without such a notion, any account of judicial behavior is strikingly incomplete, because it is flatly impossible to perfectly systematize the application of legal text to facts—else, there would be no need for judges at all. It is one thing to argue that the outcomes of cases should be reasonably predictable, but it is quite another to contend that expansively written statutes—such as the antitrust laws—must be interpreted narrowly in order to conform to an arbitrarily mechanistic understanding of judging. And where the specificity of the legal text runs out, fundamental metaphysical and political intuitions must inevitably reassert themselves.
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