Without Breyer or Scalia, Who Will Pick Up the Regulation and Antitrust Mantle?
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.
Breyer taught administrative law and published widely in the area as well as the law and economics of regulation. He authored books on regulatory policy and reform, risk regulation, and energy regulation. His expertise was the reason Senator Ted Kennedy brought him down from Harvard to take the lead staff position working on legislation that would phase out regulation of airline pricing and the Civil Aeronautics Board.
Scalia taught courses in administrative law and communications law. He was General Counsel of the White House Office of Telecommunications Policy during the Nixon Administration. He was also editor-in-chief of Regulation Magazine during its early days at the American Enterprise Institute, both writing and editing articles.
Some think the Court should not have this background, and the progressive antitrust reformers are reacting with unrestrained glee to news of Breyer’s departure. “Stephen Breyer’s fingerprints are all over our corporate power problem. Glad he finally retired,” said Sandeep Vaheesan of the Open Markets Institute. “Breyer was historically in favor of monopolies and less antitrust enforcement because he believed in a highly theoretical model of economics and because he was an elitist,” according to Matt Stoller of the American Economic Liberties Project.
But these are incorrect characterizations of Breyer’s writings and a shortsighted view of the kind of expertise that helps judges make informed decisions. No one who is even remotely familiar with Breyer’s writings and career would characterize him as in favor of monopolies or weak antitrust enforcement. Quite the opposite. Breyer was a proponent of regulation and antitrust, when informed by solid economic analysis. However, his work on regulated industries – in particular, the airline and energy industries – shaped his view that regulation was an imperfect tool, that it often entrenched incumbents, and failed to serve the interests of consumers. For those reasons, he believed strong antitrust enforcement was often a preferable solution.
The progressive reformers hope that the nominee to replace Breyer, Judge Kentaji Brown Jackson, will favor their approach to antitrust and economic regulation, which would politicize antitrust by incorporating multiple competing objectives. If they are successful, the effect on the development of the law in these areas would not be positive for consumers or the nation’s overall economic health.
Many Supreme Court nominees have an impressive mixture of academic, government, and appellate experience as did Breyer and Scalia. But it is a tall order, indeed, to find a comparable jurist to Breyer, who is as well-versed and respected in the analysis of antitrust law, despite the progressive sentiments to the contrary.
Dr. Thomas M. Lenard is a Senior Fellow and President Emeritus at the Technology Policy Institute.
