Homeland Elegies(74)

For their part, Spotts and Bork had been on terrible terms ever since issuing differing opinions in the case of Dronenburg v. Zech. In the spring of 1981, James Dronenburg, a twenty-seven-year-old petty officer in the navy, was caught engaged in “homosexual acts” in the naval barracks and honorably discharged. He filed suit, claiming the discharge violated his constitutional rights. The case wound its way to the DC Circuit, where Bork voted with the majority to uphold the navy’s decision to punish the young gay man. Robinson wrote an angry dissent, which provoked a dismissive personal rejoinder in the majority opinion penned by Bork. The relationship between the two judges had never been great, but after Dronenburg they barely spoke any longer. Irked by Bork’s interest in his clerk, Spotts advised Jerry to be careful: Bork’s imperiousness toward black appellants and solicitors was a sure sign of racism; there had to be some ulterior motive at work.

Meanwhile, Bork had introduced Jerry to someone at the White House; a pair of subsequent lunches led to a brief audience with the Gipper himself. Though it was never made explicit, Jerry gathered there was a need for black faces to support the administration’s deregulatory initiatives. In particular, black businesses across the country were starting to organize against Reagan’s new antitrust policies. It was an era of easy money; mergers and takeovers were all the rage. Ever-larger companies were swallowing up market share, putting smaller businesses out to pasture, offering the promise of lower prices to compensate for the havoc wreaked on American Main Streets. At an earlier time in the nation’s history, the federal government would never have allowed the naked corporate grab then under way; in the late ’60s, even a potential 8 percent market share was cause for the courts to block the merger of two grocery store chains in Los Angeles. The judges explicitly sided with those who stood to lose their jobs and their businesses—even if the grocery merger might mean lower prices for consumers. Bork destroyed this way of thinking. In 1978, he would publish The Antitrust Paradox, a book responsible for entirely reframing our ideas about corporate competition and the benefit to the consumer, a book described as the most cited work on its subject in American history. In his years before sitting on the DC Circuit—teaching at Yale Law School and working in the Justice Department under Nixon—Bork had educated and promoted a generation of disciples who shaped opinion from the bench, on the nation’s business pages, and in America’s boardrooms. Increasingly, the benefit to the consumer would become the dominant metric of the common good, and that benefit would be solely defined by the lowest price. A company’s scale no longer signified a potential abuse of power, only opportunity, for the bigger you were, the more power you had over your suppliers and employees; greater latitude to cut costs with impunity meant passing on savings to the consumer. The consolidation began in grocery stores2 and other retail establishments and would later expand to banks and insurers, railroads, trucking, airlines. (Decades later, of course, this process would culminate in the rise of companies of almost God-like proportions, merchants of human attention and data whose digital technologies and algorithms would come to command our very cognitive activity itself.)

Concussive scale, market share, shirked responsibility to communities and workers: all this has been permitted—no, encouraged—because of a so-called benefit to the consumer. But to hear Mike tell it, in the mid-’80s black intellectuals and businessmen were already wondering whether the nation could really thrive through buying alone. Is that all we were as Americans? Consumers? Certainly we were also laborers and owners and perhaps even citizens as well. Was there really no need to protect these aspects of our social being, too? Did the nation’s welfare truly amount to little more than saving money at the cash register?

If you were black in the ’80s, Mike said, you couldn’t ignore what the new laws really meant. Black banks, black insurers were getting bought up by white-owned holding companies and turning their backs on their new black customers; these growing conglomerates were not locally owned, had no local stakes, and had no incentive to attend to the needs of communities they didn’t live in, didn’t understand, and, frankly, didn’t like. And connected to all this not very thinly veiled commercial racism was something people like Justice Spottswood Robinson couldn’t forget: that their civil rights battles had owed more to black-owned businesses than most would ever understand. Economic independence was essential to the battle for full rights; the money to sustain the struggle had to come from somewhere; most often, it came from local black businesses. Black grocery store owners bankrolled bus boycotts; black drugstore owners financed “wade-ins” at segregated beaches; black funeral owners pulled their money from white banks until WHITES ONLY signs were removed from water fountains and bathrooms.

In the series of meetings that young Jerry Jacobs took with members of various federal agencies and lobbying firms, he started to get a better picture of why they wanted him. Scarred by their defeats in the civil rights era, convinced beyond any doubt of the transformative force of organized black protest, Reagan Republicans were taking no chances. They were worried about a critique already current in the black community, one that gave the lie to all this talk about efficiency and the consumer good, a critique articulated even before the Great Depression by none other than W. E. B. Du Bois:

To ask the individual colored man to go into the grocery store business or to open a drygoods shop or to sell meat, shoes, candy, books, cigars, clothes or fruit in competition with the chain store, is to ask him to commit slow but almost inevitable economic suicide.