Supreme Court Nominee Garland: An Assessment of Antitrust Expertise

Last month, our antitrust column was devoted to the late Justice Antonin Scalia’s antitrust legacy on the U.S. Supreme Court, focusing on his three antitrust opinions for the majority. At that time, we promised to continue that analysis, focusing this month on Scalia’s many antitrust dissents. However, history intervened and President Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit to replace Scalia. In the wake of that controversial nomination, Garland has been subsequently heralded by some commentators as an antitrust expert who may have an important impact on antitrust cases before the high court. While Garland certainly has experience with antitrust matters, he has not said he is an antitrust expert. Indeed, we respectfully would not go so far as to classify him as an antitrust expert, as was, for example, Justice John Paul Stevens before he was elevated to the Supreme Court. (See “Before Joining Bench, Stevens Molded Antitrust Law,” published May 4, 2010, in The Legal.) This article focuses on the substantive antitrust opinions in which Garland has joined or which he authored during his tenure on the D.C. Circuit since 1997.

Much has been written already regarding Garland’s tenure at Harvard Law School where he taught antitrust law for one year in 1986-87. He also wrote an antitrust ­article 30 years ago for the Yale Law Journal on the state antitrust immunity doctrine where he advocated non-interference with state regulations. While a partner at Arnold & Porter he handled one published antitrust case involving a tying claim. However, less attention has been given to Garland’s actual antitrust opinions from his tenure on the D.C. Circuit. In short, while Garland is certainly a learned jurist versed in antitrust law, his time on the bench has yet to reveal his unique insight or approach to antitrust issues, should he be confirmed to the Supreme Court. In fact, Garland joined in the majority in six cases involving a substantive analysis of antitrust law by the D.C. Circuit, but did not author any of those majority opinions.