In reversing the claim, Gorsuch wrote candidly about the competing views of economics that have informed the Court’s construction (critics have called it evisceration by “judicial legislation”) of the Sherman Anti-Trust Act since it was passed in 1890:
The Sherman Act has little to say about municipal immunity, at least directly. It contains only the broadest and barest of proscriptions against anticompetitive activity — declaring unlawful any contract, combination, or conspiracy in restraint of trade and forbidding any monopoly or attempt to monopolize. Over the last 120 years, however, much judicial embroidery has stitched out the scope of permissible and impermissible competitive activity under the Act, handiwork that's often been informed by evolving (if sometimes competing) schools of economic thought.
Gorsuch’s conclusion: “At the end of the day a municipality shares the state's ‘immunity’ when but only when it is implementing anticompetitive policies authorized by the state.” Applying this to the electricity case, Gorsuch found that “the Oklahoma legislature has spoken with specificity to the question whether there should be competition for electricity services in annexed areas. And it has expressed a clear preference for, not against, competition.”
In 2012, the Supreme Court, in a unanimous opinion written by Justice Sotomayor, later cited Gorsuch’s opinion and adopted its reasoning.
Gorsuch’s final, and most significant antitrust opinion is Novell, Inc. v. Microsoft Corp. Novel, which makes Word Perfect, wanted to embed the word processing program in Microsoft’s Windows 95 operating system. When Microsoft refused to share the software development tools for Windows 95 with its rivals, Novel objected that Microsoft, which makes the competing word processing program Word, had violated the Sherman Act.
In another unanimous panel opinion, Gorsuch disagreed, concluding that forcing firms to share information with their rivals could cause “injuries to consumers and the competitive process alike.” Because both the big and small companies would have less incentive to create in the first place, Gorsuch held, forced information sharing could prop up inefficient competitors and reduce innovation. Once again, Gorsuch used the case the explore the broader purposes of antitrust law:
Many antitrust values lie behind the boundary line the law sketches here. If the law were to make a habit of forcing monopolists to help competitors by keeping prices high, sharing their property, or declining to expand their own operations, courts would paradoxically risk encouraging collusion between rivals and dampened price competition—themselves paradigmatic antitrust wrongs, injuries to consumers and the competitive process alike. Forcing firms to help one another would also risk reducing the incentive both sides have to innovate, invest, and expand—again results inconsistent with the goals of antitrust. The monopolist might be deterred from investing, innovating, or expanding (or even entering a market in the first place) with the knowledge anything it creates it could be forced to share; the smaller company might be deterred, too, knowing it could just demand the right to piggyback on its larger rival.
Gorsuch expressed concern about judges as "central planners,”—a role, he wrote, “for which we judges lack many comparative advantages and a role in which we haven't always excelled in the past.”
The bottom line, then, is that antitrust evinces a belief that independent, profit-maximizing firms and competition between them are generally good things for consumers. Just as courts have held particular forms of antitrust conduct per se illegal because experience teaches that they are almost always destructive of competition, so too courts have fashioned rules of presumptive legality for certain forms of conduct that experience teaches almost never harm consumers. Experience teaches that independent firms competing against one another is almost always good for the consumer and thus warrants a strong presumption of legality. Acknowledging as much in the form of a general rule gives a degree of predictability to judicial outcomes and permits reliance by all market participants, themselves goods for both the competitive process and the goal of equal treatment under the law.
An article at the Lexology blog article concludes: “With background in representing plaintiffs and defendants and deciding cases in favor of both sides, Gorsuch’s policies about antitrust laws are not entirely clear. However, in his most recent and well-known case, Novell v. Microsoft, Gorsuch stated ‘[t]he antitrust laws don’t turn private parties into bounty hunters entitled to a windfall anytime they can ferret out anticompetitive conduct lurking somewhere in the marketplace.’This language may indicate a preference for a less interventionist approach to competitor conduct relating to its intellectual property.”