If Republicans Allow A Hearing On Merrick Garland's Nomination, They Should Ask Him About Teeth Whitening

Let me stipulate that trying to evaluate a Supreme Court nominee based on a 30-year old law review article is a bad idea. That said, some of the issues that Obama nominee Merrick Garland wrote about in the mid-1980s are still relevant today. These issues have surfaced, surprisingly enough, in cases involving occupational licensing and teeth whitening.

Before becoming a judge on the D.C. Circuit, Merrick Garland was an attorney at Arnold & Porter and a professor at Harvard Law School, where he taught antitrust law. He wrote several articles for the Harvard Law Review and Yale Law Journal on the scope of judicial review for administrative regulations and the state action doctrine. In the articles, Mr. Garland argued for a deferential, non-intrusive role for the judiciary. Courts should review administrative regulations to ensure fidelity to the intent of Congress and should not preempt the policy decisions of states through antitrust law or by restricting the state action doctrine.

The state action doctrine immunizes state regulations from challenges under the Sherman Act. In order to receive immunity, the challenged restraint must be "clearly articulated" as state policy and "actively supervised" by the state. California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980). At the time Garland wrote his article, some had argued that the state action doctrine should be narrowed to allow for the preemption of "economically inefficient" state regulations, especially when the regulations originated from the political efforts of private parties who stand to benefit from the restraint.

Garland, however, argued against such a revision, explaining:

The judiciary should not interfere under the aegis of the antitrust laws with a state's political decision, however misguided it may be, to substitute regulation for the operation of the market. Despite protestations, the revisionist proposal is little more than a return to the era the Court left behind when it repudiated Lochner v. New York. The substitution of 'antitrust' for 'due process' and 'economic efficiency' for 'liberty of contract' does not make the assault on democratic politics any more palatable.

Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486, 487-88 (1987).

Thirty years later, this same debate about economic liberty and the state action doctrine has resurfaced in the context of occupational...