Oyez, Oyez, oy, yoi, yoi. It took the forces of free trade and comsumerism 62 years to pass a bill shoring up and strengthening the antitrust statutes. It took the Supreme Court less than nine months to repeal a significant section of it.
The Supremes have once again demonstrated that when it comes to jazz there's nobody like them. They have ruled that retail consumer victims of price fixing have no remedy at law. If the dairies in your area conspire illegally to raise the price of milk, according to this latest bit of jurisprudence, you can't sue them. Suit must be brought by the supermarket where you bought the milk, and why should it bother since it merely passes the higher prices on to you?
The case the Supremes used to snip the Hart-Scott-Rodino Antitrust Improvements Act of 1976 concerned the allegation that a brick manufacturing company had rigged the price at which its product was sold to various contractors. The contractors, who were working on state and local builders jobs in Illinois, had, of course, passed these extra, supposedly illegal, costs on to their customers, the local government entities.
The State of Illinois instituted the suit on behalf of all those claiming injury. It did so under a specific section of the law empowering the attorney general of any state to sue whenever he believes money is being stolen from consumers by violations of the antitrust law.
This provision is one of the new sections put on the law books under the Improvements Act of 1976. The reason if's there is because the Supremes had previously distorted the law so as to bar consumers from suing when cheated. The courts had so weakened and diminished the law by interpretation that; prior to 1976, they had in effect given immunity to any manufacturer ripping off small amounts of money from millions of people buying at retail at the end of the distribution chain.
The courts had thought up many reasons for stripping consumers of any legal remedy. They had misread the statute and decided atitrust protection was only to be afforded businessmen cheated by other businessmen, not consumers. They had ruled that these cases involving small theft from millions of people were too hard to handle and that since the consumers weren't robbed of much money, it didn't matter if they left the marble-columned temples without justice.
In shooting down the brick case, the nine robed muggers found themselves time and discovered a case in which they had ruled against a manufacturer hadn't been cheated, he had passed on the overcharges to this customers. The Supremes, who are better at word games than distinguishing right from wrong, announced that since they had once, years ago, refused to buy the pass-on argument from the defense, they wouldn't let the offense use it now.
Never mind that the law had been changed in the interim just so that the ultimate victims, those to whom the scam is passed on, can get some redress. In his dissent, Justice Brennan quoted Rep. Peter Rodino, chairman of the Judiciary Committee, explaining this point in th law to the other members of the House: "Assuming the state attorney general proves a violation, and proves that an overcharge was 'passed on' to consumers, injuring them 'in their property' that is, their pocketbooks - recoveries are authorized by the . . . bill whether or not the consumers purchased directly from the price fixer, or indirectly, from intermediaries, retailers or middlemen."
Clear enough? The attorneys general of 49 states and the Department of Justice thought so, because of all of them filed briefs asking the Supremes in effect not to tamper with the statute. But not only did they repeal this section of the law, Justice Whizzer White snidely appended a footnote to the decision observing: "Should Congress disagree with the this result, it may, of course, amend the section to change it."
When it comes to antitrust legislation, no one has yet been able to figure out a way to get the judges to enforce it or even prevent them from repealing it. For 87 years judges, most of whom are nothing more than corporation lawyers in a state of remission, have defied every legislative attempt to have a meaningful antitrust law.
Nor should those who hate and antitrust take satisfaction in the thought that what they couldn't win in the national legislature, they can always get back in the law courts. If people can't expect the courts to be the neutral umpires enforcing the laws of free market competition, they will turn to government regulation as they already have.