A largely overlooked implication of Justice Stephen Breyer’s resignation from the Supreme Court is that the Court will be losing the second of two justices with expertise in regulatory and antitrust matters, with Antonin Scalia being the first.
Although Breyer and Scalia differed on many issues, notably constitutional interpretation, they came from a similar place on regulatory and antitrust policy issues. Prior to becoming judges, both Breyer and Scalia had exceptional careers combining academia with government service. Early in his career, Breyer was an assistant to Antitrust Division Chief Don Turner. Both Breyer and Scalia represented the antitrust consensus of the last 40 years, which made economic analysis and consumer welfare central to enforcement decisions.
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