Should those of us who believe that the vigorous enforcement of the antitrust laws is in the public interest fear the rise of textualism? After all, textualism is the method of statutory construction that historically was pushed by Justice Scalia, and today it is usually used by the most conservative Supreme Court justices. In cases such as Dobbs v. Jackson Women’s Health Organization, the Court used textualism to overturn well established liberal precedent.
Yet, we shouldn’t fear textualism. It’s even possible that textualism could help promote robust antitrust enforcement. Consider, for example, the original, aggressively populist words of Section 7 of the Clayton Act. It prohibits mergers the effect of which “may be substantially to lessen competition or to tend to create a monopoly.” Notice the “may” language. (Also notice some aggressive language that is beyond the scope of this article, the “tend to monopolize” language. Also notice that the original language of Section 7 contains no efficiencies’ defense!)
Although some recent court decisions use “may” in the way that it usually is defined today, many decisions have re-articulated “may” in ways that give the term a very different meaning. For example, in United States v. Baker Hughes, Inc. (then) Circuit Court Judge Thomas affirmed a district court’s conclusion that “it is not likely that the acquisition will substantially lessen competition….” (boldface added). A similar articulation appeared in In re Cast Iron Soil Pipe & Fittings Antitrust Litig., a requirement that “the effect of the merger is to substantially lessen competition or tend to create a monopoly.” (boldface added).
Other courts have re-formulated the “may” language in the context of implementing a three-part balancing test, including the 3rd Circuit’s 2022 opinion in FTC v. Hackensack Meridian Health, Inc.: “First, the FTC must establish a prima facie case that the merger is anticompetitive.” (boldface added). Recent opinions from the D.C. Circuit have substituted “is likely to” for “may,” including United States v. UnitedHealth Grp. Inc.: “[T]he government must show…that the proposed merger is likely to substantially lessen competition.” (boldface added).
These differing but all conservative re-formulations of “may” have been used in many other recent merger cases as well. They give rise to a question for which textualist analysis was well designed: What did “may” mean when the Clayton Act was passed in 1914? Did it mean the same thing as “may” means today? The same thing as “is likely to” or “will”?
A textualist analysis would attempt to determine what “may” meant when this word was used in the Clayton Act by starting – and in almost all cases ending – with the exact words of the statute. It would ascertain what “may” meant when the statute was enacted by giving this word the plain, ordinary, everyday, meaning it had at the time. But it would ignore the statute’s legislative history.
Justice Scalia’s treatise on textualism, Reading Law: The Interpretation of Legal Texts, emphasized that modern enforcers and courts should analyze how the words and phrases in question were used in leading English language dictionaries of the period and (if applicable) also in contemporaneous legal dictionaries, legal treatises, and cases. Scalia helpfully provided lists of the English language dictionaries and legal dictionaries and treatises he considered “the most useful and authoritative” for various time periods. Two of these lists, for dictionaries and for legal treatises, covered the 1901-1950 period, which encompasses both the 1914 enactment of the Clayton Act and its major amendment in 1950.
All four of the English language dictionaries from this period Justice Scalia considered to be the “most useful and authoritative” defined “may,” but none defined the full phrase, “may be substantially.” What follows are the principle definitions contained in each dictionary. Some of these full definitions are quite lengthy.
The Century Dictionary and Cyclopedia (1904) defined “may” principally as: “…. The principal uses are as follows: (a) To indicate subjective ability, or abstract possibility: rarely used absolutely …. (b) To indicate possibility with contingency….” The Oxford English Dictionary (1908) defined “may” principally as: “The primary sense of the verb is to be strong or able, to have power…. to have power or influence; to prevail (over)…. Expressing objective possibility, opportunity, or absence of prohibitive conditions; = CAN…. Expressing subjective possibility, i.e. the admissibility of a supposition. a. In relation to the future (may = ‘perhaps will’)….” Webster’s Second New International Dictionary (1934) defined “may” principally as, “To have power; to be able…. Liberty; opportunity; permission; possibility; as, he may go; you may be right…. Desire or wish…. Contingency….” Funk & Wagnalls New Standard Dictionary of the English Language (1943) defined “may” principally as: “To have permission; be allowed; have the physical or moral opportunity as, you may go; ….To be contingently possible; as it may be; you may get off….”
The Century Dictionary and Cyclopedia explicitly said that, even though “may” could be used to mean only a theoretical or “abstract possibility,” may was “rarely used absolutely” in this way. Webster’s Second New International Dictionary similarly said, “Archaic Ability; competency; – now expressed by can….” The other two dictionaries did not, however, say that an absolutist or literal usage of “may” to mean even a tiny or theoretical possibility was archaic.
All four dictionaries, of course, defined “may” in terms of a possibility or contingency. None of these dictionaries used anything resembling an “is likely to” or “will” or any other type of “more likely than not” standard that was used in the cases cited earlier.
In addition, for the 1901–1950 period, Justice Scalia listed five legal dictionaries and treatises he considered to be “the most useful and authoritative.”. Three included relevant definitions of the word “may”. The Cyclopedia Dictionary of Law (1901) defined “may” as: “Is permitted to; has liberty to. The term is ordinarily permissive….” Legal Definitions by Benjamin Pope (1920) defined “may” principally as: “The word “may” and like expressions give, in their ordinary meaning, an enabling and discretionary power….. When a statute declares that something “may” be done, the language is, as a general rule, permissive….” Bouvier’s Law Dictionary (1940) defined “may” as “Is permitted to; has liberty to… Where there is nothing in the connection of the language or in the sense and policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary….”
These legal dictionaries and treatises are thus consistent with the uses of “may” in the English language dictionaries of the period. None are consistent with the case law cited above.
Especially in light of “may” being used in conjunction with the phrase “be substantially to lessen competition,” it is highly unlikely that Congress wanted “may” to encompass mergers with only a tiny, theoretical chance of substantially lessening competition. The word “may” in Section 7 of the Clayton Act does not, however, limit the law’s prohibitions to mergers that are “likely” to or “are more likely than not” to or that “will” substantially lessen competition. A possibility or a modest probability should be enough.
This textualist analysis demonstrates that the “may” was intended by Congress to mean exactly what it means to a modern speaker of the English language. To the extent recent cases have deviated from Congressional intent, these cases should be overturned. If the courts accept the conclusions in this article the crucial question for believers in aggressive antitrust becomes: how much more vigorous would antitrust enforcement become? It is impossible to know.
To answer this question one should step back and ask the extent to which conservative judges would honestly and faithfully implement this statute as it was written even though they disagree with this wording? This dishonesty could happen even though judges are, of course, not supposed to substitute their own policy preferences for those of Congress.
Suppose, for example, a particular Circuit Court decided that a textualist reading of Section 7 should block all mergers with only a “non-trivial but modest possibility” of leading to a substantial lessening of competition? Would a conservative District Court judge presiding in that circuit who was sympathetic to corporate mergers find another, result-oriented way to dismiss a challenge to a merger? This type of judge could, for example, find a way to artificially broaden the definition of the market and thereby reduce defendant’s post-merger market share dramatically. Could a conservative judge deliberately find, on the basis of a paucity of evidence, that entry was easy and erroneously conclude that the post-merger firm had no ability to substantially affect competition?
Justice Kagan’s recent dissent in West Virginia v. Environmental Protection Agency challenged the sincerity of the current Supreme Court’s embrace of textualism. She believes they allow their conservative values to override their allegiance to textualist analysis:
Some years ago, I remarked that “[w]e’re all textualists now.” . . . It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons…. magically appear as get out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed…. [an] anti-administrative-state stance….
The antitrust statutes are populist in their origin and nature, and were written using language that reflects the populist, pro-consumer, anti-monopoly beliefs of the time. Congress certainly intended the Clayton Act to be an aggressive pro-consumer statute. Sadly, this law has largely been rendered ineffective by decades of conservative judicial interpretation.
The Supreme Court’s recent embrace of textualism, however, provides a hopeful path for returning Section 7 to its original meaning and purpose. Whether particular conservative result-oriented justices will embrace the logical implications of textualism, or decide that their adherence to textualist analysis is less important than their political beliefs, is impossible to predict.
Textualist analysis could cause courts to re-examine what they have been doing in Section 7 cases and to analyze this law with a fresh perspective. This could cause them to find and follow Congress’s original, vigorous purpose, rather than to simply follow precedent that often has deviated from the precise language contained in Section 7.
It is safe to conclude that a textualist reading of Section 7 of the Clayton Act should not trouble those who believe in robust antitrust enforcement. But in light of the conservative nature of so many judges and justices and the ease that dishonest judges would have to find ways to reach the results they prefer, it is impossible to predict whether antitrust enforcement will become more robust.
Robert Lande is the Venable Professor of Law, University of Baltimore School of Law. This article is a condensation of part of a law review article on the topic scheduled to appear in the Utah Law Review. See Robert H. Lande, “Textualism As An Ally of Antitrust Enforcement: Sections 2 and 7” (forthcoming) (draft available upon request).