Discover more from BIG by Matt Stoller
Larry Summers Honors Stephen Breyer's "Progressive Deregulation of Airlines"
Who is lauding Breyer? People who support or represent market power.
Welcome to BIG, a newsletter on the politics of monopoly power. If you’d like to sign up to receive issues over email, you can do so here.
When Stephen Breyer stepped down from the Supreme Court a few days ago, I discussed his legacy as a stalwart ally of monopolists, the kind of ‘Robert Bork of the Democrats.’ When he was nominated, Breyer was confirmed overwhelmingly by both parties, and as he retired, important Republicans have lauded him, including Senator Mitt Romney. “This is the way the Senate used to be - a welcome throwback,” tweeted NBC News chief correspondent Andrea Mitchell.
What’s interesting about this tweet is that it’s not about what Mitchell assumes, which is bipartisanship in the context of Romney’s role as a Senator. It’s about antitrust in the context of Romney’s role as a financier. Before he went into politics, Romney learned antitrust from Breyer, and then went on to become a merger and market power specialist as a co-founder of Bain Capital, one of the original private equity firms. Breyer both taught Romney how to engage in roll-ups and predatory pricing through his instruction in antitrust law, and then as a judge crafted more lax antitrust rules to enable Romney to do so. Romney is appreciating Breyer’s shaping of his life in commerce.
Another interesting figure to laud Breyer is Larry Summers, who has called the kind of antitrust that Breyer pushed as ‘scientific,’ versus what Summers sees as the more reckless ‘unscientific’ version structured by Lina Khan.
In his comments, Summers lauds Breyer’s role in the ‘progressive deregulation’ of airlines, which was in many ways the signpost for Summers’s own role in deregulating Wall Street under the Clinton administration (as well as pushing for deregulation in other areas as best he could).
Another fan of Breyer’s ‘cost-benefit’ analysis approach to regulation, which is another way of saying that monopoly-friendly economists control lawmaking, is Facebook consultant Noah Feldman, who helped structure Facebook’s Oversight Board. Feldman parades himself as a Harvard Law professor, in fact he’s just one of the untouchable legal elites that flits around the corporate and academic world taking money and gatekeeping young scholars. Like Summers, people in academia are afraid of Feldman, and like Summers, Feldman uses the term ‘pragmatic’ to police intellectual boundaries.
Finally, there’s the Wall Street Journal editorial page, a partisan Republican establishment mouthpiece supportive of big business and obsessively hostile to Lina Khan, as well as disdainful of populists on the right. In a piece titled ‘Stephen Breyer’s Loss to the Supreme Court,’ the editorial board lauded Breyer, and lamented that Biden will be able to bring on someone else. Here’s the key sentence.
[Breyer] has been the most pragmatic of the Court’s liberal bloc, which is now down to three Justices. He is the least hostile to business, bringing a law-and-economics view of antitrust in opinions on the First Circuit Court of Appeals and later to the High Court.
Breyer got a lot of praise when he stepped down, in part because Democrats are so horrified the RBG chose to put her own desire to keep serving on the court ahead of their ability to replace her with a likeminded figure. (Like Breyer, RBG was also strongly pro-monopoly on business questions, but she wasn’t an intellectual leader on antitrust.)
It’s quite notable to see who admires his legacy, and why.