Reviews | When selecting judges, Democrats must stop ignoring the economy


Academics associated with the University of Chicago, including Mr. Posner and Mr. Bork, argued in favor of drastically limiting the application of antitrust laws in the 1970s. Their ideas began to take hold even before that they are put on the bench. The Supreme Court issued one of its first decisions limiting the scope of antitrust enforcement in a 1977 case, Continental TV v. GTE Sylvania. Judge Lewis Powell Jr., who wrote the ruling, left a scribbled record of his intellectual debts on the sidelines of a memo. He said, “Posner, Baxter, Bork.”

Baxter was William Baxter, a Stanford law professor whom Mr. Reagan installed as head of the Justice Department’s antitrust division. Mr. Posner and Mr. Bork found themselves before the courts of appeal, where they became influential interpreters of competition law. Other prominent Reagan picks include University of Chicago law professor Frank Easterbrook; Douglas Ginsburg, a Harvard law professor with a distaste for regulation; and, a few years later, Justice Scalia, whose opposition to antitrust enforcement is perhaps best exemplified by a case he did not decide. Shortly after his unexpected death in 2016, Dow Chemical said it would pay $835 million to settle an antitrust case that was about to go to court. With the departure of Mr. Scalia, Dow could no longer count on a favorable outcome.

On the bench, these men and their allies replaced a sweeping effort to control corporate power with a narrow focus on consumer welfare. Pretty much anything that didn’t raise prices was OK. The courts have also made it increasingly difficult for the government to win. Maybe the latest merger drove prices up, but who could be sure of this one?

In 2017, Mr. Posner, addressing a conference on antitrust at the University of Chicago, coyly asked the audience, “Antitrust is dead, isn’t it?”

Conservative jurists received significant support from centrist and liberal justices who took a jaded view of the broad goals of the nation’s antitrust laws and saw enforcement efforts as inconsistent and even counterproductive.

What they left standing turned out to be woefully insufficient. The rise of corporate concentration hurts consumers, suppliers, employees and democracy itself.

Restocking the courts is only part of the solution, and it’s a long-term project. Antitrust cases brought by the Biden administration will be tried primarily by judges appointed by Mr. Biden’s predecessors. Eighteen federal judges appointed by Mr. Reagan are still in office.


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