Antitrust is — and always has been — about fairness

SCOTUS is entitled to its own (judicial) opinions, but not its own facts.

It’s easy to take the Supreme Court’s flurry of judicial atrocities as a contemporary phenomenon, but all the way back in 1993, SCOTUS engaged in a historical fantasy that has taken a terrible toll on the American people and American political legitimacy. Long before Citizens United, there was Brooke Group Ltd. v. Brown & Williamson Tobacco Corp:

https://supreme.justia.com/cases/federal/us/509/209/

It was an antitrust case, and in 1993, decades of antitrust precedent that sought to prevent the accumulation of power into a few companies’ hands was being upended by a radical, far-right doctrine called “consumer welfare” — a doctrine that spread to “liberal” justices as well, as 40% of the federal bench took part in the Manne Seminars, lavishly funded “education” junkets:

https://pluralistic.net/2022/10/03/powell-memo/

In Brooke Group the Supremes moved an outlier — 1962’s Brown Shoe Inc — into the center of antitrust law, with Kennedy quoting Brown Shoe for the majority: “It is axiomatic that the antitrust laws were passed for ‘the protection of competition, not competitors.’”