Tim Wu responds to a recent ProMarket post by Herbert Hovenkamp which argues for the dismissal of the Supreme Court’s 1962 Brown Shoe decision. Wu says that the Court’s duty is to obey and interpret the intentions of laws set by Congress, and cases cannot be dismissed because they don’t align with a particular policy perspective.
It is a truism that Congress writes the laws and that the courts interpret them. As Justice Sonia Sotomayor put it “judges must apply the law and not make the law.” Hence, as the Supreme Court has said for most of its history, the starting point and touchstone of statutory interpretation is legislative intent.
In major antitrust cases the Supreme Court is inescapably engaged in a process of statutory interpretation. But in too much antitrust commentary and judicial decision-making, there is no serious effort to undertake the first task in federal statutory law: figuring out what Congress wanted. Too often, core questions of statutory interpretation are simply ignored, as if there were some kind of antitrust exception to the usual rules of statutory interpretation.
This leads to Professor Herbert Hovenkamp’s ProMarket post, which critiques the famous 1962 Brown Shoe opinion. That case marked the Court’s first examination of the Anti-Merger Act of 1950, otherwise known as the Celler-Kefauver Act, which made major changes to Section 7 of the Clayton Act. Hovenkamp regards the case as a “zombie” that “should be put back in its coffin.” He presents policy reasons to suggest that Brown Shoe’s approach to mergers was ill-considered, and suggests that subsequent caselaw has all but overruled the decision.
None of this, however, bears on the main legal question: did the Brown Shoe Court correctly assess what Congress intended in the Act of 1950? In Hovenkamp’s analysis, the court is not actually faulted for failing to obey Congress; its apparent mistake was a failure to adhere to other antitrust goals related to “competitive market performance.” That’s a problem, given that the Brown Shoe decision is primarily a statutory interpretation case.
It seems much fairer to say that Hovenkamp’s real beef is with the 1950 Congress. That Congress sought to change how the judiciary approached Section 7 of the Clayton Act and in doing so made major changes to the text of the law, for reasons it explained in its legislative history. Given that context, it would seem that the primary question need be whether or not the Court correctly understood Congress’s new direction. That’s, anyhow, how the Court framed the question. Speaking through Chief Justice Earl Warren it wrote that “we think it appropriate to review the history of the amended Act in determining whether the judgment of the court below was consistent with the intent of the legislature.” The Court then outlined eight points that it thought fairly represented what Congress had intended, some of which are inconsistent with what Professor Hovenkamp regards as appropriate antitrust values, in affirming the lower court’s decision.
If the Brown Shoe Court was accurate in its assessment of Congressional intent, it follows that the decision’s interpretation of the statute cannot be put in any coffin — so long as it remains the province of Congress, as opposed to professors, to repeal statutes.
This is not to ignore the active and longstanding debate over how legislative intent ought be discerned — whether, for example, it is best taken from text, legislative history, or a more pragmatic assessment of what the legislature wanted. That could lead to a reasonable debate over the best interpretation of the text and history of the new Section 7 created by the 1950 Congress. In his defense, Professor Hovenkamp perhaps believes that the 1974 Supreme Court decisions General Dynamics Corp. and Marine Bancorporation (the last Supreme Court decisions to actually interpret the statute), better reflect Congressional intent (though notably those cases made no effort to overrule Brown Shoe.) It does, however, become much harder, if not impossible, to suggest current merger doctrine outside of the Supreme Court reflects what the 1950 Congress intended.
It may not be fair to focus on Hovenkamp’s short and informal essay, but it reflects a much broader disregard for Congressional intent in antitrust thinking over the last few decades. When Harry First and Spencer Weber Waller described antitrust’s growing “democracy deficit” in 2013 among their main complaints was the widespread disdain of Congressional purpose. That is also reflected in educational materials, like the Areeda Antitrust casebook. Early on, the book expresses doubt that “legislative understandings of the economy from decades ago or over a century ago should govern contemporary controversies.” The broad hint to students is that courts, agencies, and commentators should be free to ignore what Congress wanted if its directives “don’t make economic sense.”
The point here is that statutory interpretation cannot be optional, nor should clear Congressional text or intent be trumped by free floating “antitrust values.” That is particularly the case for the Clayton Act, the Anti-Merger Act and Robinson-Patman Act, which were written with obvious Congressional goals — and in the case of the former two laws, were actually intended to correct and restrain the judiciary.
Yes, Congress can be frustrating, vague and populist, and the goals of a law passed in 1950 or 1914 may or may not always align with the economic thinking of the 2020s. But to therefore ignore legislative supremacy and the usual rules of statutory interpretation is little more than a quieter form of Lochnerism. The Constitution “does not enact Mr. Herbert Spencer’s Social Statics” — and it doesn’t enact price theory either. There is no antitrust exception in the duty of courts to obey Congress.
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