AAI Reviews Justice Ketanji Brown Jackson’s Antitrust and Class Action Record, Explores Competition Policy Implications of Her Supreme Court Appointment

AAI has published a commentary reviewing the newest Supreme Court justice’s career encounters with antitrust law, competition policy, and complex civil litigation generally. 

Justice Jackson has presided in Section 7 cases under the Clayton Act, cases involving technical Hart Scott Rodino violations, and antitrust discovery disputes.  She has also addressed competition policy issues in RICO and agricultural commodities cases, and she has resolved several class-certification disputes in consolidated actions brought under other federal statutes. 

During her time at the U.S. Sentencing Commission, Justice Jackson served as Vice Chair when the Commission reviewed the adequacy of the Sentencing Guidelines’ recommendations for cartel fines.  She also clerked for Justice Breyer during an important term in which the Court considered whether to hear a direct appeal of the Microsoft case and heard argument and issued a decision in the California Dental case.  In both cases, Justice Breyer issued a dissent.

The commentary notes that if Justice Jackson fits a similar mold as Justice Breyer, as many predict, she is less likely to be a strong champion of progressive antitrust and more likely to be a pragmatic moderate who carefully balances administrability considerations against the procompetitive objectives of the law.  Regardless, barring significant Court reform measures, the lopsided conservative majority on the current Court ultimately may limit her ability to meaningfully shape antitrust jurisprudence.