How Might A Justice Kavanaugh Impact Antitrust Jurisprudence?

Posted by Pro Market

How Might A Justice Kavanaugh Impact Antitrust Jurisprudence?

By Stephen Calkins

Throughout his judicial career, the US president’s latest nominee to the Supreme Court, Brett Kavanaugh, has written three antitrust opinions. Here, Stephen Calkins of Wayne State University Law School reviews the trends that emerge from those opinions.

Justice Kavanaugh—this comment simply assumes that he will be confirmed—would become the second Trump-appointed aggressively conservative, pro-business justice. Nominated at age 53, he could be expected to serve for decades.

This commentary reviews Judge Kavanaugh’s antitrust opinions. 1) He has dissented from two D.C. Circuit decisions that acceded to government requests to block mergers: United States v. Anthem, Inc.; 2) and FTC v. Whole Foods Market, Inc. 3)The first, preventing a 4-3 merger of health insurance carriers, turned largely on arguable efficiencies. The second, objecting to the merger of the two largest “premium, natural, and organic supermarkets,” turned principally on market definition. Judge Kavanaugh also addressed antitrust in his concurring opinion in Comcast Cable Communications, LLC v. FCC, 4)in which the Court rebuffed the FCC’s order requiring Comcast to carry the Tennis Channel on equal terms with comparable Comcast-owned offerings. The Court reached this result on narrow grounds. Judge Kavanaugh separately wrote a sweeping opinion disagreeing with the FCC and saying that statutory language authorizing regulations to prevent conduct that “unreasonably restrain[s]” a rival from “compet[ing] fairly by discriminating . . . on the basis of affiliation or nonaffiliation” (a) must have meant (no citation of Chevron) to allow only duplication of antitrust law, and (b) must have meant that all vertical restraints are per se protected at least absent proof of market power – which he concluded that Comcast did not have — and (c) that’s a good thing, because the First Amendment protects Comcast’s “editorial discretion” about whether to carry the Tennis Chanel.

Continue reading…