The Antitrust Legacy of Justice Ruth Bader Ginsburg
One area of the law in which her opinions in a most prolific career are rare, is that of antitrust. It could be that Ruth Bader Ginsburg, who joined a U.S. Supreme Court already heavy with two antitrust jurists—Justices Stephen Breyer and Justice John Paul Stevens, and more recently Justice Neil Gorsuch—felt the viewpoints of her better-versed colleagues more compelling than her own thoughts on the matter.
October 02, 2020 at 01:37 PM
7 minute read
Ruth Bader Ginsburg was a trailblazer on so many fronts. Her well-earned nickname "notorious RBG" is usually synonymous with gender equality, civil rights and equal justice under the law. Her mark on the law is certainly indelible, and what she stood for as the second female Justice on the court, (one who was deemed unworthy of any law firm job despite graduating first in her class from Columbia Law School) maybe even more so. But one area of the law in which her opinions in a most prolific career are rare, is that of antitrust. It could be that Ginsburg, who joined a U.S. Supreme Court already heavy with two antitrust jurists—Justices Stephen Breyer and Justice John Paul Stevens, and more recently Justice Neil Gorsuch—felt the viewpoints of her better-versed colleagues more compelling than her own thoughts on the matter. Perhaps, as she said stated in her Senate confirmation hearing, "antitrust … is not my strong suit" and that she could address antitrust questions only as they arose in the certain facts of a case. But even in her willingness to shy away from her blistering dissents in the antitrust arena, she did move the needle when it came to the court's jurisprudence on the subject. In some of the most prominent antitrust cases that the court has had, Ginsburg, while not writing for the court, did join her dissenting colleagues in such cases as Leegin Creative Leather Products v. PSKS; Ohio v. American Express and Twombly and Iqbal. In Twombly, she joined a dissent that argued that antitrust allegations should have been given more weight at the pleadings stage, siding with Stevens when he wrote "'Defendants entered into a contract' is no more a legal conclusion than 'defendant negligently drove,' … Indeed it is less of one."
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