Antitrust, Political Economy, and the Nomination of Brett Kavanaugh

Abstract

The essay considers the record of Supreme Court nominee Brett Kavanaugh within antitrust law and related policies. Deep substantive engagement with a nominee’s record by subject-area experts—as an adjunct to review by generalist Senators and interest groups—seems desirable and missing from much of our debate, as to Supreme Court nominees of any background or persuasion. In this particular case it is uncommonly necessary, because the nominee is himself uncommon. Review of the antitrust cases, along with cases on cognate competition issues and the closely related context of net neutrality, turns out to be both stark and quite telling. It discloses a more generalized political economy and a more generalized approach to judging. In particular, Judge Kavanaugh has demonstrated a strongly ideological agenda and a willingness to pursue it with substantial disregard for precedent and statute.