ANALYSIS: SCOTUS Punts, But Sherman Act May Face a Reckoning

On Nov. 12, the US Supreme Court rejected cross-petitions from the Justice Department and a construction contractor about what the government has to prove to win a criminal antitrust case, and whether criminal antitrust prosecutions are constitutional.

The Supreme Court’s silence leaves in place a Fourth Circuit opinion that deeply confuses bid-rigging prosecutions. But it also means that the court didn’t take up the opportunity to gut the Sherman Act‘s criminal provisions—as the defendant, Brent Brewbaker, invited the court to do.

The Supreme Court’s decision to punt on these arguments means we’ll see them again in court—and that antitrust ...