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17 Antitrust 8 (2002-2003)
Sylvania and the Process of Change in the Supreme Court

handle is hein.journals/antitruma17 and id is 10 raw text is: CO0V ER S TOR IE S A FIRST LOOK AT THE POWELL PAPERS: Sylvania and the Process of Change in the Supreme Court BY ANDREW I. GAVIL I'' IS NOW PART OF THE WELL-WORN lure of antitrust. Something happened, and beginning with the Supreme Court's 1977 decision in Sylvania, a revolution unfolded in the content of the law ofantitrust. More than fifty years of increasing reliance on per se rules gave way to a decidedly more economic analytical model, one that has ptovcti to be far more demanding of plaintiffs, public and privatte, who seek to pursue federal antitrust claims, and far more receptive to defendants assert- ing defenses based on efficiency. In a scant five years, the Court moved from bpro's refusal to ramble through the wilds of economic theory' to Syltvania's admonition that atn antitrust policy divorced from market considerations would lack any objective benchmarks.' This radical shift in attitude did not enanate from Congress. No significant amendments to the antitrust laws date from the period. Instead, owing to the common law nature of the Sherman Act,' the Supreme Court-one of the most central, if not the most central institutional actor responsible for shaping American at titrust polky-breathed life into the rule of reason, setting in motion a process of change that in part continues to this day. Although the who, what, and when of that sea change have long been clear, the why and how have not. The lower courts largely have accepted the change with lit- tic further examination. Commentators too for the most part have welcomed it as a more sound basis for antitrus pni- icy. And while many courts and commentators alike have observed how the inherent weaknesses of Arnol. Sc/hirinol laid the foundation for Slvania-perhaps even invied it- there has been little public examination of the institutional characteristics of the Court that facilitated its decision to alter course. Andrew I. Gavil iS the ArlIlCes Editor of ANtl teis r Magazine and a pro. lessor at Howard UIniversity School of Law, The author would like to thank John Jacobs. the archivtst of the Powell Papers at the Washington & Lee University School of Law, for his Invaluable research assistance. Appreciation is also due Tyler A. Baker, one of Justice Powell's law clerks at the time Sylvania was decidedl, for answering meny questlions and graciously offering to share his rncolleotions of his tithe of the Court. This article is based on a first reading of the papers of Justice Lewis F. Powell, Jr., the author of the majority opin- ion in .S,/tania.' Those papers reveal that a series of factors converged in Sylvania to pry open the possibility for change. Some are quite obvious, and already well documented, whereas others may be new to what one commentator recent- ly described as the antitrust conversation.' Regardless, the Powell papers shed a great deal of light on the normally shrouded process whereby the Supreme Court forms and reforms antitrust doctrine. Factor It A Pronounced Sbift hr the Character of the Court. Wlen Sylvania came before the Court in 1977, only three oif the nine Schwinn justices remained, and only one from the majority. The author of Schwinn, Abe Fortas, had been replaced by Nixon appointee Harry Blackmun. With the exception of Justice William J. Brennan, the rest of tie Schwinn majority had been replaced by more cotiservative counterparts-Chief Justice Earl Warren by Chief Justice Warren Burger, Hugo Black by Lewis Rhwcll, and William 0. Douglas by Ford appointee John Patti Stevens. Of the two Justices who had recused ilcisclvcs in Sc/hwinn, Byron White remained, but Tom Clark had been replaced by Thurgood Marshall.7 Of the dissenting/concurring justices, Stewart remained, bur Harlan had been replaced byWilliam Rehnquist. One c.lt hardly doubt, therefore, that the changed char- acter of the Court had a profound effect on the outcome in Sylvania. While commentators periodically examine and seek to quantify the significance of political affiliation in judicial appointments) political parties, themselves, spend little ri nie debating whethercontnol of judicial appointmients matters. At least since Alarbwuy ip. Madison,' they have instead done bat- tic over the right to appoint, and rightly or wrongly have con- sistently assumed that the po.er to appoint judges is the power to perpetuate the party's philosophy. The pro- nounced shift oIl the Court between Schrwin and Sylvania, in large )art attributahkl to the four Nixon appointees.-- Burger, Blackmtin, Powell and Rchnquist-is a case in point. It is hard it imagine that the Schwinn majority of Fortas, Douglas, Warren, Black, and Brennan would have been so enticed by the new economics of vertical restraints to the point of being ready to reconsider Schwinn. 8 A N t I t R 1) 5 T

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