Antitrust and Abortion Politics
Einer Elhauge speculates that Justice Breyer’s dissent in Leegin might have been motivated by considerations outside the realm of traditional vertical restraints analysis.
So, it seems clear that, under standard Harvard school principles, the majority was right to overrule the per se rule against vertical minimum price-fixing. The puzzle is what provoked a vigorous dissent Justice Breyer, one of the world’s most sophisticated antitrust justices, who has generally been fully within the Harvard school. Part of the reason may be that the majority failed to express the stronger grounds for its conclusion that I have described above. But the fact that Breyer’s dissent referred no less than six times to the stare decisis considerations that were cited in an abortion case made it hard to avoid the conclusion that this case had gotten mixed up with abortion politics. One wonders sometimes whether it would not be better to have a separate Supreme Court of Abortion Law, to prevent abortion issues from mucking up the rest of Supreme Court jurisprudence and from distorting the nomination and confirmation process for justices who spend the lion’s share of their time on unrelated issues.Here is the link to the article.
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