ANALYSIS: Few Antitrust Tea Leaves on Trump’s SCOTUS Picks

The Supreme Court’s docket next term will include two cases that could reshape antitrust enforcement. President Trump’s two most likely candidates to join the court don’t have a lot of past antitrust experience to review in determining how they might affect those decisions.

Both of the judges considered most likely to receive the nomination for Justice Ruth Bader Ginsburg’s seat, following Ginsburg’s death Sept. 18, are relatively new to the federal bench and, as a result, have not issued many opinions.

Given that the most important antitrust issue before the Supreme Court next year is one of statutory interpretation and agency authority, perhaps antitrust chops are unnecessary for a new justice this term. But many practitioners feel that antitrust is at a crossroads, and expect vital issues about whom the law protects and what conduct it forbids to reach the high court in the next several years. And given the age of the candidates, any new appointee has the potential to shape public and private antitrust enforcement for decades.

Amy Coney Barrett

One judge touted as a likely pick, U.S. Court of Appeals for the 7th Circuit Judge Amy Coney Barrett, has at least a few antitrust opinions under her belt. Despite the Seventh Circuit being a premier court for antitrust, none of the opinions in which Barrett has participated provide much insight into her approach to antitrust law.

An analysis of Bloomberg Law dockets found Barrett’s name on only six appellate panels that decided antitrust cases since she received her commission in November 2017. She wrote none of those opinions, nor did she dissent or concur in any of them. As such, they provide limited information about what Barrett specifically thought of the arguments counsel made or the underlying legal issues.

Further, these appeals were not complex. In three cases, Sharif Pharmacy, Inc. v. Prime Therapeutics LLC, Zummo v City of Chicago, and McGarry & McGarry LLC v. Bankr. Mgmt. Sols., Inc., the court affirmed a district court dismissal of the antitrust claims. One case, Momo Enters. LLC v. Popular Bank, saw the court summarily affirm the district court’s dismissal of the case and sanction the plaintiff for a frivolous appeal. One further case, while involving an antitrust claim in the district court, was purely about patent law and contract issues on appeal. Those cases provide little insight into Barrett’s potential legal approach.

That leaves just one case in which Barrett participated that involved substantive antitrust issues, Marion Healthcare LLC v. Becton Dickinson & Co., decided March 5, 2020. In that opinion, authored by Chief Judge Diane Wood, the court vacated and remanded the dismissal of an antitrust claim by health care providers alleging that their suppliers formed a vertical conspiracy to raise prices. The lower court mangled the “indirect purchaser” analysis, Wood said, and incorrectly turned away the plaintiffs for lack of standing. The plaintiffs adequately alleged that they purchased medical supplies from members of a conspiracy, Wood reasoned, but failed to adequately allege the conspiracy itself. The court remanded so the plaintiffs could attempt to revise their complaint to allege more concrete facts demonstrating that their suppliers really were working together to raise prices to healthcare providers.

Barbara Lagoa

U.S. Court of Appeals for the Eleventh Circuit Judge Barbara Lagoa, also mentioned frequently as a potential Supreme Court nominee, has even fewer opinions on record in antitrust cases. An analysis of Bloomberg Law Dockets beginning when she received her commission to the Eleventh Circuit in December 2019 shows that she has not yet issued an opinion on the court.

She was in her previous role on the Florida Supreme Court for just 11 months; however, during that short tenure, she authored many opinions. Bloomberg Law Dockets indicate, however, that she was involved in only one opinion that even alleged a claim under Florida’s antitrust statute. The issue on appeal was personal jurisdiction, and the court’s opinion did not touch on the antitrust claim.

Big Question Before the Court

The Supreme Court has accepted certiorari in two cases that, despite their potential to have serious impacts on antitrust enforcement, don’t deal with antitrust law itself.

Specifically, the court is hearing cases that could end the Federal Trade Commission’s ability to seek equitable remedies in federal court pursuant to its authority to seek injunctive relief under section 13(b) of the FTC Act. Those cases, combined with other legal changes from the past two years, could make it impractical for the FTC to seek relief in court and could cause it to reroute much more enforcement through its administrative process. It could also leave the FTC unable to seek redress for consumers who claim they were defrauded by shady businesses.

While not immediately on the court’s docket, issues are also percolating up through the courts that should come to a head in the next few years. Questions about two-sided platforms and the plaintiff’s burden to initially plead a relevant market, based on the court’s recent decision in Ohio v. Am. Express, are developing. Issues around digital markets, exclusive dealing, unilateral conduct, and proving antitrust damages as a class are increasingly complex and could come to the court within the next few terms. And of course, the issue of who may bring an antitrust suit continues to vex litigants and courts alike.

Whoever joins the Supreme Court will likely put their stamp on antitrust law. It’s difficult to tell from reading the tea leaves, however, how either of these potential nominees would respond to the big issues that divide practitioners today.

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