Substantial and substantive issues of national importance are often obscured by the usual myopic and frenzied focus on political talking points, sensational sound bites and collateral name-calling. This is perhaps better exemplified in presidential elections than contests for other political offices. The current race to the presidency is plainly setting a new high (or low) watermark in that regard. In an effort to bring some clarity to a whirlpool of contentiousness clouded by the blue smoke and mirrors fueled by political pundits, our next columns will be offering an objective assessment of the presidential front-runners, Hillary Clinton and Donald Trump, and their views regarding antitrust, competition and related consumer protection issues. Such key issues affect the daily lives of millions of people and businesses, from the single consumer to the largest global corporations, yet are often overlooked in more sensational campaign news coverage. We begin this month by reviewing just a few of the key antitrust and consumer protection issues that will ultimately be decided by the next administration.
First, as we previously discussed, the death of U.S. Supreme Court Justice Antonin Scalia earlier this year creates an opening on the nation’s highest bench, which currently has only eight Supreme Court justices. The impact of this vacancy is at least twofold. For one, the court no longer has the unique voice of Scalia, a critic of the antitrust laws, and as we have explained, one who was often unlikely to find antitrust injury and harm where the relevant facts painted a colorable competition claim even where a jury had reached the opposite conclusion and found antitrust liability. Conversely, a new member of the court will of course bring his or her own unique voice to the court, and we have previously examined President Obama’s Supreme Court nominee, Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, and his own antitrust perspective and expertise.
In addition to bringing a necessary unique perspective to the bench, the newest justice will also find himself or herself in the midst of a court frequently divided over antitrust issues. By our own rough count, approximately 40 percent of the court’s substantive antitrust opinions in the last 10 years have been decided along 5-4 or 6-3 votes. Thus, the next Supreme Court justice has the potential to be a key swing vote in important cases, thereby amplifying his or her potential impact on the court, particularly in the wake of Scalia’s death. Continue Reading