From Daren Fonda’s “A Right-Leaning Court Will Tackle Some Big Business Cases. The Outcomes Aren’t Obvious” ($) in this week’s Barron’s:
Beyond this term, the court’s new makeup could have a major impact on the tech industry. The Department of Justice may be close to filing an antitrust case against Alphabet. A suit against Facebook may be coming, and antitrust probes are underway against Amazon.com. Apple is also on the defense, after the court allowed a class-action case to proceed involving claims of anticompetitive pricing at its App Store.
Court rulings are unpredictable, of course, and the breakdown isn’t always between conservatives and liberals. President Trump’s last two appointees split in the Apple case, with Brett Kavanaugh joining the liberal wing and Neil Gorsuch dissenting.
“A conservative philosophy doesn’t necessarily mean a pro-business outcome,” says William Jay, a partner at law firm Goodwin and a former clerk for Antonin Scalia. “Business cases don’t divide the court the way that high-profile 5-4 decisions on constitutional or social issues do, and there are cases in which conservative justices vote against business interests….”
Conservatives such as Barrett tend to be more skeptical of regulatory powers and aim to roll back “deference” to federal agencies—the practice of granting them latitude to interpret laws and impose remedies and fines. That deference, stemming from a 1984 Supreme Court case involving Chevron (CVX), has been challenged repeatedly by conservative groups. Antitrust claims may also face steeper hurdles since conservatives tend to set a higher bar for proving economic harm, according to Joel Mitnick, an antitrust expert at law firm Cadwalader.
My take: Amy Coney Barrett is to Ruth Bader Ginsburg as Clarence Thomas is to Thurgood Marshall.