‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 2

by Ed Whelan

Having shown in my Part 1 post that Fordham law professor Zephyr Teachout has no actual evidence to support her Occupy Wall Street attack on Neil Gorsuch, I’ll now turn to her broader misframing of antitrust law.

Teachout purports to present the “two sharply different philosophies” of antitrust law that “have emerged” among Supreme Court justices in “the 137 [sic; should be 127] years since Congress passed the Sherman Act.” In her cartoonish account, on one side is her “democratic,” big-is-bad philosophy that holds that it is “vital to use antitrust law to distribute power and opportunity as widely as possible in society.” On the other side is the “anti-democratic” view that “allows the rich and powerful to do whatever they will to the independent businessman and farmer.”​

The historic battle in antitrust is better understood as over whether the antitrust laws protect competitors or competition. That battle has been fought and won by the latter view, as in recent decades a consensus has developed among conservative and liberal justices that the antitrust laws protect competition (and advance the public interest by doing so). Thus, Justice Brennan, in his majority opinion in Cargill, Inc. v. Monfort of Colorado (1986), explained the concept of antitrust injury by citing the “principle that the ‘antitrust laws … were enacted for “the protection of competition, not competitors.”’” For that proposition, he quoted a unanimous opinion written in 1977 by Justice Thurgood Marshall.  

Teachout also makes the bizarre claim that Justice Scalia in his three decades on the Court “undermine[d] basic tenets of antitrust law.” But all that Teachout offers in support of that extravagant claim is Justice Scalia’s majority opinion in Verizon Communications v. Trinko (2004), which held that a complaint that an incumbent local telephone company had breached its statutory duty to share its network with its competitors did not allege a violation of section 2 of the Sherman Act. (Disclosure: I worked for Verizon and its predecessor company GTE from 1995 to 2001.)

Among the justices who joined Scalia’s opinion in Trinko were Ginsburg and Breyer. Indeed, Scalia favorably cites two Breyer opinions, one as a justice, one as a First Circuit judge. There were no dissenters. (The three justices who didn’t join Scalia’s opinion—Stevens, Souter, and Thomas—would have ruled that the plaintiff lacked standing to assert its antitrust claim.)

Continuing in fantasy mode, Teachout asserts that Trinko “had a chilling effect on [antitrust] prosecutions.” Oh, really? Prosecutions under section 2 of the Sherman Act have long been rare, and there is no reason to think that Trinko had any effect on them. And Teachout’s claim that Trinko “is part of the reason a handful of big companies now dominate U.S. markets for cable, drugs, hospital beds, seeds, eyeglasses, office supplies, milk, beer and books” (emphasis added) seems to be just another way for her to gripe that her own “philosophy” of antitrust has been thoroughly rejected and marginalized.

In short, the one and only person whom Teachout’s piece exposes as an extremist on antitrust law is Teachout herself.

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