Tom Williams/CQ Roll Call via AP Images
Natasha C. Merle, nominee to be U.S. district judge for the Eastern District of New York, greets committee chair Dick Durbin (D-IL) after her Senate Judiciary Committee confirmation hearing on Capitol Hill, April 27, 2022.
Judge Matthew J. Kacsmaryk’s recent issuance of a nationwide preliminary injunction, invalidating the Food and Drug Administration’s approval of mifepristone, a pill used in medication abortions, was only partially limited by the Fifth Circuit, despite significant questions about the standing of the plaintiffs and the dangerous precedent it would set for evidence-based drug approvals by the FDA. While the Supreme Court has temporarily blocked the lower courts’ interim rulings, it returned the case to the stridently anti-abortion Fifth Circuit to rule on the merits. This case, along with last summer’s Supreme Court decision in the Dobbs case overturning Roe v. Wade, has spotlighted the right’s hope that the courts can give them what they want even if the ballot box doesn’t do so.
Less well known is that their vision of remaking the courts has encompassed another goal besides abortion: to defang our nation’s anti-monopoly and fair competition laws as part of the right-wing project to concentrate power at the very top. Indeed, many of the same judicial figures behind the attack on abortion rights have been central to the evisceration of major legislation like the Sherman Act and the Clayton Act that had been designed to bust up monopolies and protect small business, consumers, and workers, as well as spur innovation.
More from Caroline Fredrickson
President Ronald Reagan gets much praise from the right for taking up the fight against legal abortion, seeing appointments to the federal judiciary as a core element of this battle. But he also pleased them when, right from the beginning of his presidency, he sought judicial nominees who shared this singularly narrow and revisionist—and antitextual—understanding of antitrust law. Picking up from the legacy of Presidents Nixon and Ford, whose five appointments began the assault on anti-monopoly policies (including Justice Lewis Powell, whose determination to overturn postwar antitrust precedents was previewed by his famous “Powell Memo” to Chamber of Commerce colleagues detailing how to protect capitalism and free markets against distributive interests), Reagan’s four appointees to the Court, who included the chief justice, shared the goal of limiting the reach of the regulatory state on business, including efforts to restrict mergers, acquisitions, and other monopolistic practices. By the end of his term, Reagan’s appointments made up almost half of the federal judiciary. Among these judges were Antonin Scalia, Robert Bork, and Frank Easterbrook, who helped infuse these ideas into case law.
But the conservative legal movement’s ambition was to influence the entire judiciary, and thus, in addition to the conservative appointments, they have run a singularly successful series of swanky retreats for judges to promote wider dissemination of these views. We have learned to our dismay about how enticing junkets and gifts are to judges as well as justices, a phenomenon glaringly highlighted by reporting in the past week describing billionaire Harlan Crow’s largesse toward Clarence Thomas. These retreats are basically similar, except for right-wing economics, and openly available to every judge and justice. Begun in the 1970s, they provide free and luxurious accommodations for judges to hear lectures and share cigars with the likes of Milton Friedman and Paul Samuelson. Who could say no? Apparently, not very many of them: 40 percent of federal judges had attended by 1990. Not surprisingly—based on recent reporting—those who enjoyed the largesse along with a dose of doctrine included future justice Clarence Thomas, as well as Ruth Bader Ginsburg. This program continues to exist but is now housed at the Antonin Scalia School of Law at George Mason University. Its website states coyly: “A basic knowledge of economics principles … can help judges better understand the long-term implications of their decisions, thereby improving the development of the law and benefitting America’s free enterprise system.”
The need for judges who understand the threat monopoly poses could not be more important.
The right-wing legal movement was right to see these judges as key to their vision, just as their appointees have been the leading edge of the attack on reproductive rights. But the success of the venture is not limited to the influence and numbers of conservative appointees. Instead, and more alarmingly, these programs and this ideology have infected the entire judiciary, with many Democratic appointees coming to share the same views. As a result, the judiciary as a whole has served the ends of allowing massive corporate consolidation, stifling worker organizing—even the ability for low-wage workers to change jobs, through noncompete clauses in contracts—and threatening the real innovation that thrives only in a truly competitive marketplace.
To his credit, President Biden has worked with determination to advance judicial nominees during his presidency. His nominees include 119 Article III judges: one associate justice of the Supreme Court of the United States, 31 judges on the circuit courts of appeal, and 87 on the district courts. He had another 18 nominees awaiting action as of early April. This record is laudable, especially as Biden has excelled in advancing a diverse group of nominees, with two-thirds being women and two-thirds people of color. Moreover, approximately 53 percent of them worked at public-interest, civil rights, or legal aid organizations, according to an analysis done by Demand Justice, a progressive legal advocacy organization.
Unfortunately, President Biden’s otherwise commendable record on nominations has one glaring gap: He has advanced few candidates with a background or even apparent disposition to challenge the anti-regulatory economic agenda and fight corporate consolidation, failing even to advance more than a couple of labor lawyers. The administration is currently in overdrive to nominate and confirm nominees before the next election, so now is the time to address this gap. New appointees would be able to reclaim and elevate the textual and historical commitments of antitrust law, which sought to dismantle oligarchy by looking at how corporate consolidation affects workers, small businesses, innovation, and competition, as well as consumers.
This shouldn’t be a stretch for this president. He has already shown his determination to fight the growing threat to competition posed by monopolistic practices through his appointments of Lina Khan to helm the Federal Trade Commission and Jonathan Kanter to lead the Antitrust Division of the Department of Justice. The need for judges who also understand the threat monopoly poses could not be more important, especially in light of the Supreme Court’s recent decision in Axon Enterprise v. FTC that poses a direct threat to agency rulemaking. President Biden now needs to use his appointments process (ideally speeded along by Senate Democrats) to make sure that all the good work that the Justice Department and the FTC are doing now and will do in the future doesn’t meet an untimely end in the hostile courts.
