Shadowboxing and the Infectious Spread of Ideological Battles:

In addition to the big school cases that were decided today, the Supreme Court also decided an antitrust case, Leegin v. PSKS. In Leegin, the Court overruled a 1911 case (Dr. Miles Medical Co. v. John D. Park & Sons Co., for those of you scoring at home) to find that vertical price restraints should be judged under the rule of reason rather than be treated as per se unlawful (as Dr. Miles had held). You can be forgiven if your eyes are already glazing over.

What’s striking about this case is the lineup — 5-4, with the conservative 5 (Kennedy writing) against the liberal 4. Obviously, I am oversimplifying in using the terms “conservative” and “liberal,” because the camps aren’t that neat. But that’s precisely what’s so remarkable about this case — they fell into that familiar 5-4 lineup on an antitrust case with little ideological baggage. Maybe we shouldn’t have been surprised when politically charged cases like today’s school cases just happened to have 5 conservatives against 4 liberals. But this is antitrust, not some hot-button issue.

Indeed, recent antitrust cases have not followed ideological lines. Some antitrust cases have been unanimous, like Weyerhaeuser v. Ross-Simmons from this Term, NYNEX v. Discon from 1998, Verizon v. Trinko from 2004 (Stevens concurred separately in that one), and State Oil v. Khan (which overruled a prior precedent) from 1997. Others have been split, but have not rigidly followed ideological lines. Notably, California Dental v. FCC from 1999 was 5-4, but Souter wrote with most of the conservatives and Kennedy dissented with most of the liberals. Meanwhile, Bell Atlantic v. Twombly from this term was 7-2, with Souter writing and Stevens and Ginsburg dissenting. And the predictions for Leegin this Term were not for a 5-4 split of conservatives and liberals. So what gives?

I fear that this reflects shadowboxing and the spread of ideological battles from hot-button cases to other ones. What the dissent in Leegin really says is that there is no good reason here to reject stare decisis, and emphasizes that the arguments against Dr. Miles have been aired for 50 years but Congress has not seen fit to reject it. Translation: respect stare decisis, and look to Congress; please don’t go too far now that you have the majority, and respect the decisions of Congress (which happens to have had a recent change in its leadership). The majority responds that stare decisis is not an inexorable command and that Congress’s failure to act is of no great significance. Translation: we will overrule as we see fit, and don’t feel the need to defer to Congress on this or much of anything else.

The dissent highlights this shadowboxing at the end, where Breyer flatly states: “It is difficult for me to understand how one can believe both that (1) satisfying a set of stare decisis concerns justifies overruling a recent constitutional decision, Wisconsin Right to Life, Inc., ante, at 19-21 (Scalia,J., joined by Kennedy and Thomas, JJ., concurring in part and concurring in judgment), but (2) failing to satisfy any of those same concerns nonetheless permits overruling a longstanding statutory decision.”

It could all be coincidence, of course. The liberal justices have dissented on some previous cases. But I fear that what’s really happening is that ideology has infected an area of law that used to be about as non-ideological as the Supreme Court gets. And if ideology were to infect this area of the law, then why should we have any confidence in the Court’s antitrust judgments, and why shouldn’t Congress rein in the Court’s broad authority under the antitrust statutes?

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