Justice Breyer's Antitrust Legacy: A Liberally Conservative Jurisprudence

Justice Stephen G. Breyer joined the U.S. Supreme Court in 1994 with arguably the most professional experience in antitrust law of any contemporary Justice, having served as Special Assistant to the Assistant U.S. Attorney for Antitrust in the 1960s, counsel for the Senate Judiciary Committee during the restructuring of the airline industry in the 1970s, and decades as a professor of Administrative Law. His retirement from the Supreme Court in 2022 comes at a time of renewed interest in antitrust, with the FTC and DOJ taking a more aggressive approach to antitrust enforcement, and Congress considering stringent new antitrust reform legislation. Justice Breyer was a pragmatist on issues of antitrust law and often balanced the real-world implications of the Court's decisions alongside the economic analysis underpinning each case. He authored landmark antitrust opinions and measured dissents that focused on institutional design and capability considerations, including the role courts and enforcement agencies should and can play in enforcing antitrust laws and joined the majority in numerous business-friendly antitrust decisions. His true antitrust legacy - the ripples of case law applying the decisions he shaped - is just starting to unfold.

Elizabeth Odette, Erica Lai, and Danielle Morello, leading practitioners in U.S. antitrust law, will discuss:

• Justice Breyer's background and the influence of the modern Harvard School approach on his antitrust jurisprudence

• Justice Breyer's antitrust opinions and meaningful dissents 

• Major antitrust decisions joined by Justice Breyer

• The impact of Justice Breyer's antitrust legacy

• How the Supreme Court's approach to antitrust may change with the turnover on the Court in recent years, and particularly with Justice Ketanji Brown Jackson succeeding Justice Breyer

Learning Objectives:

1. Interpret Justice Breyer's perspective on antitrust jurisprudence

2. Summarize major decisions authored and joined by Justice Breyer

3. Assess how Justice Breyer's jurisprudence impacts current antitrust practice and enforcement

4. Predict how Justice Breyer's antitrust legacy may influence future decisions