President Donald Trump appears poised to cement a supermajority of conservative justices on the U.S. Supreme Court. On Saturday, Trump nominated Amy Coney Barrett, currently a Judge of the United States Court of Appeals for the Seventh Circuit. U.S. Senate Republicans led by Senate Majority Leader Mitch McConnell are expected to confirm Barrett either before or after the election in November.
The battle over Trump’s nominee is likely to consume Washington over the next few weeks… Chaos isn’t good for Wall Street, but if there’s good news for businesses, it’s that the court is likely to be friendlier to free enterprise—chipping away at regulatory powers, restraining consumer rights to sue, and handing victories to companies on a host of issues.
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.
Ideological divides are likely to harden on the court, impacting not just rulings, but also the critical wording of opinions, and petitions for cases to be heard. Barrett is known as a reliably conservative judge; she clerked for Scalia and advocates a “textualist” approach to statutes, avoiding expansive interpretations.
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… “What you’re seeing—and this should be good news for everyone—is that justices are trying to be careful not to write legislation, which isn’t their job,” says Elizabeth Papez, a partner at law firm Gibson Dunn and former clerk for Justice Clarence Thomas.
MacDailyNews Take: Apple should have no problem either way if their App Store case goes to the Supreme Court as the company, which, importantly, does not have anything near a monopoly in smartphones or smartphone app stores, is simply and rightfully charging a fee for developers who choose to conduct business in their store.
[Attribution: Apple 3.0. Thanks to MacDailyNews Reader “Fred Mertz” for the heads up.]