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Opinion | When Picking Judges, Democrats Need to Stop Ignoring Economics

Academics associated with the University of Chicago, including Mr. Posner and Mr. Bork, built a case for sharply limiting antitrust enforcement during the 1970s. Their ideas began to take hold even before they were put on the bench. The Supreme Court issued one of its first rulings limiting the scope of antitrust enforcement in a 1977 case, Continental T.V. v. GTE Sylvania. Justice Lewis Powell Jr., who wrote the decision, left a scribbled record of his intellectual debts in the margin of a case memo. It read, “Posner, Baxter, Bork.”

Baxter was William Baxter, a Stanford law professor whom Mr. Reagan installed as the head of the antitrust division at the Justice Department. Mr. Posner and Mr. Bork ended up on appeals courts, where they became influential interpreters of antitrust law. Other important Reagan picks included Frank Easterbrook, a law professor at the University of Chicago; Douglas Ginsburg, a Harvard Law professor with a distaste for regulation; and, a few years later, Justice Scalia, whose opposition to antitrust enforcement is perhaps best illustrated by a case he did not decide. Shortly after his unexpected death in 2016, Dow Chemical said it would pay $835 million to settle an antitrust case that had been about to come before the court. With Mr. Scalia gone, Dow could no longer rely on a favorable outcome.

On the bench, these men and their allies replaced a broad effort to check corporate power with a narrow focus on consumer welfare. Pretty much anything that didn’t raise prices was OK. The courts also made it increasingly difficult for the government to win. Perhaps the last merger raised prices, but who could be sure about this one?

In 2017, Mr. Posner, addressing an antitrust conference at the University of Chicago, puckishly asked the audience, “Antitrust is dead, isn’t it?”

The conservative jurists received important support from centrist and liberal justices who took a jaded view of the broad goals of the nation’s antitrust laws and saw enforcement efforts as inconsistent and even counterproductive.

What they left standing has proved woefully inadequate. The rise of corporate concentration is harming consumers, suppliers, employees — and democracy itself.

Restocking the courts is only a part of the solution, and it is a long-term project. Antitrust cases brought by the Biden administration will be adjudicated mostly by judges appointed by Mr. Biden’s predecessors. Eighteen federal judges named by Mr. Reagan are still serving.

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