At the Republican National Convention, Donald Trump spoke approvingly of late Supreme Court Justice Antonin Scalia as a model for future Supreme Court nominees. We have previously written about the potential impact Scalia’s death may have on the Supreme Court. In particular, we noted Scalia’s reluctance to find antitrust violations even where judges and juries—triers of fact presented with all of the evidence—reached opposite conclusions in the rare antitrust case to go to judgment or verdict. This may not be surprising to some given Scalia’s public statements that he never “understood” antitrust law “because it did not make any sense.” Trump has been through the antitrust grist mill on several occasions, which may have shaped his own view as to whether the antitrust laws make any sense.
Foremost, Trump uniquely understands the power of litigation. He is the most litigious U.S. presidential candidate ever, having been involved personally, or through one of his corporate entities, as a party in no less than 3,500 lawsuits. During his candidacy, there have been at least 70 new lawsuits. Many such actions have involved claims under the antitrust law. This article will focus not on Trump’s stated intention to use the antitrust laws to further his political agenda, as has been the focus of much recent discussion, but rather on his experience as a defendant in antitrust actions, which may have shaped his antitrust views.
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