Liberal anti-monopolists are celebrating the departure of left-leaning Supreme Court Justice Stephen Breyer because they expect his replacement to favor more aggressive antitrust enforcement.
Breyer, who announced his retirement from the court Wednesday, almost three decades after becoming a justice in 1994 under Democratic President Bill Clinton, is known for his expertise in antitrust and economic regulatory matters.
Liberal antitrust scholars say Breyer has gained a reputation for unfairly siding with big businesses and anti-competitive companies during his time as a justice.
“Stephen Breyer’s fingerprints are all over our corporate power problem. Glad he finally retired,” said Sandeep Vaheesan, legal director at the Open Markets Institute, a liberal anti-monopoly think tank.
Democrats and liberals expect President Joe Biden to nominate a justice with a more modern and expansive interpretation of the nation’s antitrust laws.
“A new, younger, more progressive justice would also almost certainly be a substantive improvement over Breyer on critical questions of antitrust enforcement and corporate power,” Vaheesan wrote in an opinion piece on Breyer last October.
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Within the Supreme Court, historically speaking, liberal justices are known for supporting stronger antitrust enforcement while conservative justices give wider latitude to big businesses, but Breyer’s track record on antitrust cases often didn’t fit within that paradigm.
“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,” said Matt Stoller, an antitrust expert and author of Goliath: The Hundred Year War Between Monopoly Power and Democracy.
“We expect the justice Biden will pick to be less aggressive in promoting market power of dominant firms, and hopefully she’ll be more skeptical of monopolies than Breyer,” said Stoller, who works for the American Economic Liberties Project, a liberal think tank.
Breyer is known to have played an important role in several pro-big business opinions as a justice. Most notably, he signed on to conservative Justice Antonin Scalia’s majority opinion in a 2004 decision, Verizon v. Trinko, that highlighted the supposed benefits of monopolies. The Trinko case has been used as a precedent to dismiss multiple monopoly-related lawsuits since then.
In FTC v. Actavis, Breyer delivered the opinion of the court for a five-justice majority, giving brand-name pharmaceutical companies significant power to pay generic manufacturers to delay their entry into the market, which hurt consumers, liberals argue.
Stoller said that prior to becoming a justice, when Breyer was a federal judge, there was not a single antitrust case in which he ruled against a big business and for a smaller company.
Former antitrust enforcers, such as Republican Bill Kovacic, who chaired the Federal Trade Commission under President George W. Bush, said Breyer’s departure would be unfavorable for those on the Right.
“Conservatives and Republicans will be disappointed because Breyer was on their side in most antitrust cases in applying antitrust in a narrower fashion,” Kovacic said.
“It’s not good for the GOP because Breyer’s replacement will probably be more activist in nature and more in favor of antitrust interventions,” he said.
Kovacic added that Breyer’s departure would leave a significant gap in the Supreme Court with regard to knowledge of antitrust and regulatory matters.
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“He was one of the foremost antitrust experts in the world. I doubt we’ll see anyone like him on the court again,” Kovacic said.
