A very modern practice.

Photographer: Sion Touhig/Getty Images

Smile! Alito Revisits 19th Century Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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I caution my students against seeing the U.S. Supreme Court's conservative justices as antiquarians, eager to take our jurisprudence back to the 18th or 19th centuries. Whatever guise originalism wears, it’s an evolving and, in many ways, forward-looking way of seeing the world. But every so often there's an opinion that conforms to the stereotype. Justice Samuel Alito issued such an opinion Wednesday in an otherwise obscure case about -- not joking -- teeth-whitening in North Carolina.

Alito's dissent was joined by Justices Antonin Scalia and Clarence Thomas, which perhaps comes as no surprise. But it's noteworthy that Chief Justice John Roberts joined the opinion for the court written by Justice Anthony Kennedy, which was also joined by the courts’ four liberals. In an important way, the case, and the judicial lineup in it, reflects the difference between moderate conservatism and the court’s hard right.

The issue in the case seemed deceptively simple. North Carolina, like other states, has a State Board of Dental Examiners that licenses and regulates the profession. The board is made up of six private dentists elected by the state’s dentists, one hygienist elected by her or his peers, and a consumers representative chosen by the governor.

Unsurprisingly, the board’s policies reflect the interests of North Carolina dentists. As teeth-whitening clinics run by non-dentists began to pop up in the state, the board sprang into action. It issued a series of cease-and-desist letters to the chief whiteners, threatening them with criminal action if they continued their practice. Because, in fact, you don't have to be a dentist to practice teeth whitening safely and successfully, this was a blatant act that violated federal antitrust laws. The Federal Trade Commission therefore brought the board of dentists to court.

In its generally unremarkable opinion, the Supreme Court held in favor of the FTC and against the dentists. This, presumably, will be good for consumers. You can expect Tar Heel smiles to shine a bit more brightly as more residents of North Carolina are able to exercise their right to get their teeth white at the lowest available market price. God bless America.

Not so fast, said Alito, Scalia and Thomas. They accepted that the board’s action was anticompetitive. But Alito pointed to a doctrine announced by the court in the 1943 case Parker v. Brown. The justices then held that a California program to create a common classification and advertising arrangement for raisin growers was exempt from the federal antitrust law known as the Sherman Act. The court said that the Sherman Act was not intended “to restrain a state or its officers or agents from activities directed by its legislature.”

The Parker precedent, according to Alito, exempts any state agency from antitrust laws. Thus, Alito reasoned, “the only question in this case is whether the North Carolina Board of Dental Examiners is really a state agency, and the answer to that question is clearly yes.”

The majority disagreed, restricting immunity under the Parker rule to situations where, among other things, the state actively supervises the agency. Because the dental board isn't supervised at all, but acts on its own, the court concluded that the antitrust laws apply to it. This is a sensible line to draw, allowing states to engage in their own regulation if they're willing to take responsibility for it, but not permitting them to outsource to industry regulators a right to engage in grossly anticompetitive behavior.

Here's where Alito got, well, medieval. He argued that the only way to understand the 1943 Parker decision is “to recall the constitutional landscape in 1890 when the Sherman Act was enacted.” In those good old days, Congress couldn’t effectively regulate internal state commerce, while the states enjoyed “exclusive authority” to regulate their economic affairs. Alito admitted that by 1943, all this had changed. But he claimed that the Parker court must've been harking back to 1890 when it created antitrust immunity for state agencies.

In support, Alito quoted the Parker decision: “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress.” In Alito's gloss, this slightly overblown language was meant as a journey back in time to 1890, when it would've been “truly radical and almost certainly futile” for Congress to regulate states’ internal anticompetitive behaviors.

The idea is that any state agency no matter what must be immune from antitrust regulation because in 1890, the states were still real states and got to do whatever they wanted. Thus, not only did Alito want to turn the clock back to 1890; he claimed that the 1943 court was equally antiquarian in its reasoning.

This conclusion is dead wrong as a historical matter. The Parker court wanted to protect Depression and World War II-era regulations adopted to stabilize the economy. Its motives were pretty clearly grounded in the present, not nostalgic or historical. The New Deal, which all the justices on the court in 1943 had voted to uphold in one form or another, had ushered in a new era of pervasive regulation. The court thought that blocking such a regulation using the Sherman Act would be an act of reactionary conservatism, and so went the other way.

Alito, then, is turning the Parker decision on its head by describing it as a nostalgic trip to the 19th century. And he's doing it because he finds this bucolic picture of federalism attractive. It's a good thing there are only three votes for such a view on the court. It's a good thing Roberts and Kennedy are conservative but not crazy. But election season is just around the corner: Who will be joining the Supreme Court next?

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net