The Atlantic

A Supreme Court Nominee Alert to the Dangers of Big Business

Far from reflexively favoring big corporations over small competitors, Judge Neil Gorsuch has a nuanced view of antitrust law.
Source: Aaron Bernstein / Reuters

As Judge Neil Gorsuch’s Supreme Court confirmation hearings begin Monday, Democratic senators, led by Chuck Schumer, are preparing to argue that President Trump’s nominee favors big business over small business and capital over labor.

The Center for American Progress argues that “if he becomes a justice, the Supreme Court would very likely continue its trend of ruling in favor of big business.” The Constitutional Accountability Center warns that confirming Gorsuch on the Court “would further solidify the hold that big business has on the Court, as exemplified by the increasing success of the U.S. Chamber of Commerce before the Roberts Court.” The Chamber of Commerce, by contrast, has celebrated his nomination as “fantastic.”

Gorsuch’s supporters respond, plausibly, that in many of the cases in which he ruled on behalf of corporations or against workers, he was following the letter of the law, or was bound by Supreme Court precedents. And in other cases, he has ruled in favor of workers and against corporations—in suits alleging racial or gender discrimination, for example. He wrote the panel opinion in 56 of the 177 labor-rights cases he heard during his 10 years on the bench. None of these opinions had a dissent, and 33 were joined by at least one judge appointed by a Democratic president.

Since liberal as well as conservative justices have embraced the pro-business inclinations of the Roberts Court, Gorsuch was bound to follow its often-unanimous pro-business precedents as a lower-court judge. But to get a sense of whether he will simply join this bi-partisan pro-business consensus or move the Court in a more or less pro-corporate direction, it may be helpful to focus on his views in a single area: antitrust suits against big corporations.

On that front, Gorsuch’s record is more interesting than his critics allow. While many conservative judges focus exclusively on the question of whether deals harm or benefit consumers, Gorsuch has suggested that combinations that give firms too much market power can be problematic for other reasons, such

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