A Century of Supreme Court Antitrust Jurisprudence: The Accelerating Pace of Extra-Constitutional Judicial Activism

Abstract:     
Focusing on the Supreme Court's antitrust jurisprudence, the paper addresses the Court's transformation from a decider of cases to a policy making body that determines antitrust policy in sweeping fashion, often with little or no connection to the facts of the case before it. Although the Court's transformation is linked to a variety of factors not directly linked to antitrust law, the Court's embrace of judicial activism has been especially visible in antitrust cases. The paper identifies a number of indicators of judicial activism and explains why each is relevant to measuring the Court's activism. One of these indicators is the Court's employment of superprecedents – prior holdings that are cited to establish a particular antitrust policy. Superprecedents have often been employed to establish an economic premise or policy point in lieu of analysis of legislative intent or a survey of underlying economic learning. The Court's transformation has occurred over time, frequently with the support of the Executive and generally with the acquiescence of Congress. The Paper documents the increase in the Court's judicial activism in a survey of antitrust cases beginning with early twentieth century Sherman Act cases. The Court's expanded role as a policy maker is extra-constitutional – not contemplated by the framers – and inconsistent with democratic values. The paper concludes with a survey of possible reforms that could return the Court to its traditional judicial role as a decider of cases and controversies.

Number of Pages in PDF File: 95

Keywords: Sherman Act, Judicial Activism, Supreme Court

JEL Classification: A11, A12

working papers series