For a decade, Gorsuch worked at Kellogg Huber in Washington, D.C., where he litigated antitrust cases. In 2002, he won what was then the largest affirmed antitrust verdict against a corporation in American history, a $1.05 billion verdict against the American Tobacco company. He went on to oversee competition cases in the Bush Justice Department as principal deputy to the associate attorney general and, after being confirmed to the U.S. Court of Appeals for the Tenth Circuit, Gorsuch taught antitrust law and ethics at the University of Colorado, where he earned respect by banning laptops and requiring students to take notes. And on the Tenth Circuit, Gorsuch wrote three important antitrust opinions that favored big corporations in some cases and their smaller competitors in others. Throughout, Gorsuch showed a litigators’ perspective on how antitrust law operates in practice, and his appreciation for the perspective of both big and small businesses that may help to restore some pragmatism to the Court’s approach to economic competition.

This perspective differs dramatically from the late Justice Antonin Scalia’s views on antitrust. In his own confirmation hearings in 1986, Scalia joked that in law school, he “never understood” antitrust law, and later learned that he “should not have understood it because it did not make any sense then.”

Fordham University law professor Zephyr Teachout argues that “the joke was on American democracy: Scalia proceeded to undermine basic tenets of competition law for the next 30 years,” notably in the Verizon v. Trinko case, where he narrowed the Sherman Antitrust Act by holding that Verizon didn’t have to share its network. According to Teachout, “the ruling had a chilling effect on prosecutions [and] Trinko is part of the reason a handful of big companies now dominate U.S. markets for cable, drugs, hospital beds, seeds, eyeglasses, office supplies, milk, beer and books.” And yet as Ed Whalen notes in National Review, Trinko was a unanimous opinion, joined by Justices Ginsburg and Breyer, confirming that any pro-corporate tendencies in the current Supreme Court’s approach to antitrust are bi-partisan.

Gorsuch, by contrast, approaches antitrust law from the perspective of an experienced litigator, not an ideological law professor. Here is his full description, in his Senate questionnaire, of his experience winning the historic $1.05 billion judgment against the American Tobacco company in private practice:

The U.S. Court of Appeals for the Sixth Circuit upheld a $1.05 billion treble damages award on behalf of my client, Conwood, against United States Tobacco Company (UST) after a jury concluded that UST had engaged in illegal monopolization. Conwood alleged that UST, which controlled nearly 80% of the U.S. market for moist snuff smokeless tobacco, had attempted to exclude competing products by entering into exclusive deals with retailers, removing competitors’ sales racks, burying competitors’ products in UST racks, and destroying point-of-sale advertising (the industry’s primary marketing medium). The verdict, reached after a four-week jury trial, was believed to be the largest affirmed private damages award in the history of U.S. antitrust laws as of 2002. In its verdict, the jury also rejected UST’s counterclaims seeking millions of dollars in damages. After trial, the court took additional evidence, conducted additional motions practice, and granted a four-year injunction against certain anticompetitive conduct by UST, a result also affirmed on appeal. UST petitioned for review in the Supreme Court, we opposed the petition, and the Supreme Court ultimately denied review. The case involved scores of depositions and massive discovery, as well as ancillary proceedings in several jurisdictions. I helped manage and run the case at all stages, from the pre-suit investigation through the drafting of the complaint; the discovery process; pre-trial motions practice; trial, where I served as second chair and handled many witnesses on direct and cross; post-trial motions practice; and the preparation of appellate briefs.

Randy Stuntz of the progressive American Antitrust Institute concludes that Gorsuch’s record suggests that he is “arguably not as doctrinaire as Justice Scalia,” although his record “largely fits a conservative mold.” The American Antitrust Institute summarizes his argument in the Tobacco case approvingly:“His brief in that case argued that conduct can be sufficiently exclusionary and harmful to support antitrust liability if it impairs the opportunities of rivals yet does nothing to benefit competition on the merits, without regard to profit sacrifice.” And the fact that the American Antitrust Institute has not yet spoken out more strongly against Gorsuch is a testament to the complexity and nuance of his antitrust record.