Apparently one of the consequences of the last 2 presidential elections is that we are returning to a pre-1900 understanding of society's ability to impose limits on corporations. In another 5-4 ruling, SCOTUS overturned a 96 year old precedent on price collusion. NYT:
WASHINGTON, June 28 — Striking down an antitrust rule nearly a century old, the Supreme Court ruled today that it is no longer automatically unlawful for manufacturers and distributors to agree on setting minimum retail prices.
The decision will give producers significantly more leeway, though not unlimited power, to dictate retail prices and to restrict the flexibility of discounters.Five justices said the new rule could, in some instances, lead to more competition and better service. But four dissenting justices agreed with the submission of 37 states and consumer groups that the abandonment of the old rule would lead to significantly higher prices and less competition for consumer and other goods.
The court struck down the 96-year-old rule that resale price maintenance agreements were an automatic, or per se, violation of the Sherman Antitrust Act. In its place, the court instructed judges considering such agreements for possible antitrust violations to apply a case-by-case approach, known as a “rule of reason,” to assess their impact on competition.
The really funny part is that in his majority opinion, Chief Justice Roberts wrote that by favoring a case-by-case approach over a blanket prohibition, the new rule will reduce the threat of litigation. OK.
The Supreme Court adopted the flat ban on resale price agreements between manufacturers and retailers in 1911, when it founded that the Dr. Miles Medical Company had violated the Sherman act. The company had sought to sell medicine only to distributors who agreed to resell them at set prices. The court said such agreements benefit only the distributors, not consumers, and set a rule making such agreements unlawful.
Justice Kennedy said today that the court was not bound by the 1911 precedent because of the “widespread agreement” among economists that resale price maintenance agreements can promote competition.“Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed,” he wrote.
I thought the new era of conservative jurisprudence was supposed to mean less legislating from the bench. The Court reached its decision based on its understanding of economics? What happened to conservative cries for applying the text of the laws as they were written?
This follows, as you will no doubt recall, two free speech decisions, one upholding the government's ability to limit drug related speech, the other overturning the government's ability to limit money-as-speech in political campaigns. Publius wasn't kidding when he said we'd entered a new era of result-oriented jurisprudence
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