The Evolving Populisms of Antitrust

Today, some antitrust commentators have called for the Supreme Court to abandon its focus on protecting consumers and focus exclusively on maximizing so-called economic efficiency, regardless of its distributional consequences. In more concrete terms, according to this school of thought, the antitrust enforcement agencies and courts should be indifferent toward whether a dollar goes to consumers in the form of savings or to producers and shareholders in the form of profits. The courts should reject this approach and strengthen the historic commitment of antitrust law to consumer populism. This article proceeds as follows.

Part II discusses the Supreme Court’s rulings in the early era of antitrust: 1890–1930s. During this period, the Court articulated the antitrust laws as preserving the commercial viability and freedom of small businesses. The Court recognized the harms from cartels and monopolies and also the benefits of scale economies. Part III reviews the Supreme Court’s antitrust decisions in the mid-twentieth century.

Between late 1930s and early 1970s, the Court showed concern for consumer well-being but also remained committed to the protection of small businesses. The Court during this era prized the free setting of prices and frowned on attempts to restrain the operation of the price mechanism. It also took a hostile stance to mergers, tying, and most vertical restraints. Part IV turns to the current era of antitrust jurisprudence that dates from the mid-1970s to the present.

The Supreme Court has held unequivocally that the antitrust laws exist for the protection of consumers and has declined to defend businesses from vigorous competition. At the same time, the Court has shown greater faith in the benefits of big business conduct and taken a more benign view of mergers, vertical restraints, and monopolies. Part V argues that the legal regime should remain committed to consumer protection. Part VI concludes.