Balls and Strikes - A Brief History of Stephen Breyer Enabling Corporate Power

Legal director Sandeep Vaheesan describes how Supreme Court Justice Stephen Breyer has played a key role in the rise of monopoly and oligopoly across the economy.

Citing his advanced age, many progressives have called for Justice Stephen Breyer to step down from the Supreme Court so that President Joe Biden can nominate his successor during this potentially narrow window of Democratic control of the Senate.The case for the 83-year-old Breyer’s retirement is not only about his longevity, though. Throughout his career as a justice, an appeals court judge, and a legislative staffer, Breyer has helped fuel the modern rise of corporate power. 

Although not as reliable a defender of big business privilege as his conservative colleagues, Breyer played a key role in freeing some of the largest players in the airline, banking, and pharmaceutical industries from effective public oversight. This orientation is out of step with Democratic voters, Democratic lawmakers, and a Democratic administration that have signaled their interest in reining in dominant corporations. 

A defining achievement of Breyer’s career was the restructuring of the airline industry—commonly referred to today as “deregulation”—in the late 1970s. As counsel to the Senate Judiciary Committee, Breyer helped persuade Massachusetts Senator Edward Kennedy to lead the charge against the Civil Aeronautics Board (CAB) and the public utility rules that had governed the airline industry since the New Deal. This system operated on the assumption that certain characteristics of the airline industry—the large fixed costs of acquiring aircraft, in particular—favored a concentrated market structure with relatively few carriers, making textbook price competition among airlines infeasible. Accordingly, the CAB set airfares and approved routes, contributing to steady reductions in airfares and ensuring service to small and medium-sized cities and towns. Breyer opposed the CAB system, in part, because he believed regulators limited price competition among airlines to the detriment of the flying public.

Breyer’s view quickly proved to be wrong. Following the restructuring of the industry, major carriers pursued monopolization and consolidation with vigor. With increasing frequency, they moved from point-to-point travel (New York to Los Angeles direct) to hub-and-spoke service (those New York to Los Angeles via Minneapolis itineraries we all love to hate). Airlines also built up “fortress hubs” that they dominate, such as the Delta-heavy Hartsfield-Jackson International Airport in Atlanta, to facilitate this new model. 

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