An American Antitrust Institute analysis of Supreme Court nominee Brett M. Kavanaugh’s opinions suggests his confirmation would almost certainly weaken the antitrust laws and the ability of the government and private plaintiffs to enforce them. Based on Judge Kavanaugh’s sparse but conspicuous record in antitrust cases, AAI believes his nomination represents a serious setback for antitrust enforcement. Therefore, AAI opposes Judge Kavanaugh’s nomination to the Supreme Court.
Judge Kavanaugh’s opinions and decisions on the D.C. Circuit demonstrate hostility to antitrust plaintiffs, including the expert federal antitrust agencies. In particular, his dissents in two prominent merger cases signal a doctrinaire skepticism of threatened anticompetitive harm, leniency toward efficiencies claims that presumptively illegal mergers are procompetitive, and a willingness to disregard plaintiff-friendly precedent. His two other antitrust decisions also supported defendants.