Boston, MA – Antitrust law and the issue of merger enforcement continue to be plagued by judicial activism, straying from the conservative legal movement’s principles of interpreting the law rather than shaping it. The Clayton Act, enacted in 1914, tasked the Department of Justice with assessing whether a merger would “substantially lessen competition” or create a monopoly in any industry. However, recent antitrust trials have demonstrated that some courts are willing to allow anticompetitive actions, even in the face of overwhelming evidence.
One such trial in Boston involves JetBlue’s proposed $3.8 billion acquisition of Spirit Airlines. The government presented documents showing that the merger would lead to increased prices on over 100 nonstop and connecting routes where JetBlue and Spirit compete. Witnesses testified that airlines often lower prices in response to Spirit entering a market. Furthermore, JetBlue executives expressed concerns that Spirit would surpass them by 2025. Another antitrust court had already ruled that JetBlue’s partnership with American Airlines replaced competition with cooperation.
Despite the government’s strong case, the judge presiding over the trial expressed hesitancy in enjoining the merger. He questioned whether the remote possibility of financial disaster justified blocking the merger and considered proposing his own set of divestitures to salvage the deal. These actions demonstrate a departure from the constitutional order of courts simply interpreting the law rather than making policy decisions.
This case raises an important question regarding antitrust enforcement. Either judges strictly adhere to declaring what the law is or they usurp the authority of policymakers. There is no middle ground. The hope is that antitrust judges exercise judicial restraint and follow the clear path set forth by the conservative thinkers who championed the consumer welfare standard.
In summary, the issue of judicial activism in antitrust law and merger enforcement persists, deviating from the conservative legal movement’s principles of strict interpretation. Recent trials, including the JetBlue-Spirit Airlines merger case, have demonstrated courts’ willingness to disregard evidence and allow anticompetitive actions. The fundamental choice for antitrust enforcement lies in whether judges adhere to interpreting the law or overstep their role and engage in policymaking.