The Antitrust Legacy of Justice William O. Douglas and the Curse of the Curse of Bigness

C. Paul Rogers , SMU

Abstract

Justice William O. Douglas’s position as our leading antitrust hawk cannot be denied. He is also, of course, our longest sitting Supreme Court Justice. During his long tenure on the Court, he wrote more antitrust opinions than anyone in our history. Surprisingly, however, with all the scholarship on Douglas, including two full-length biographies, there exists no thorough or complete treatment of his lengthy and controversial antitrust record. This article seeks to fill that gap by critiquing Douglas’s antitrust opinions in the context of contemporary antitrust doctrine. It considers Douglas’s deep distrust of economic power, fueled in part by his legal realist roots, and his fervor for the small businessman. It explores the anti-consumer bias of Douglas’s antitrust philosophy as well as the indeterminancy of his “big is bad” approach. Although his seminal opinion in United States v. Socony-Vacuum Oil, written within the first year of his appointment to the Court, remains one of the mainstays of antitrust doctrine, the article concludes that Justice Douglas for the most part fell far short of developing a determinate or coherent antitrust philosophy. The article concludes that the antitrust legacy of our most aggressive, prolific and potentially influential antitrust jurist is a failed one.