Monday, January 26, 2004

Capitalism & Law: Punting on Antitrust

The Supreme Court punted on the Andrx case today, delaying a decision on accepting the case until the Solicitor General files a brief “expressing the views of the United States”. This is the second antitrust case this term where the Court has done this: Last fall, the Court delayed a decision on 3M’s appeal of a $68 million antitrust judgment until the Solicitor General could, er, tell Justice O’Connor what to do.

I know there is some appellate law justification for the practice of delaying consideration of a petition and inviting the Solicitor General to file a brief. But there was nothing stopping the Solicitor General from filing a brief during the same time everyone else—including, in this case, CAC—had to file. The fact the Justice Department chose not to file should be sufficient for the justices. After all, if the Court grants Andrx’s petition, the Solicitor General can still file a brief at the merits stage.

The reliance on these so-called “invitation” briefs demonstrates, to me, the increasing institutional paralysis of the current Court. Justice O’Connor is a major culprit in this. She does everything in her power to avoid making a decision on the merits of important cases. But the rest of the Court must share the blame. In the Andrx case, there are no rational grounds for refusing to hear the case: There is a clear circuit split on an issue of major importance. We’re talking about billions of dollars in potential liability—in this and future cases—if Andrx loses. If the Court can’t accept this case without asking for Ted Olson’s permission, then they’re completely worthless as a judicial institution.

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