Barrett Is Wild Card For Tech Antitrust Cases At High Court

Law360 (October 2, 2020, 5:14 PM EDT) --
Corbin Barthold
Corbin Barthold
Judge Amy Coney Barrett's nomination to become the U.S. Supreme Court's 115th justice has sparked contentious debates about abortion, guns and the Affordable Care Act. Those topics no doubt have their place. But many other major issues come before the court.

In the next few years, the so-called techlash, in particular, will likely propel several big cases onto the court's docket. There has been little discussion of Judge Barrett's approach to the areas of law on which those cases will turn.

Judge Barrett is, in many ways, a mainstream legal thinker and jurist. Her articles and legal opinions are those of a sober, dispassionate textualist. As a scholar, she has written extensively on statutory interpretation. As a judge, she has declared that "litigation is not the vehicle for resolving policy disputes." One study says her work "discloses a spirit that — to borrow from Judge Learned Hand — 'is not too sure that it is right.'"[1]

So we can be confident that, when presented a statutory text, Judge Barrett will strive to apply it as written. Still, much is uncertain. Some of a judge's most consequential tasks do not involve parsing words.

Take what's known as Chevron deference, a doctrine that instructs judges generally to defer to how administrative regulations construe purportedly ambiguous statutes. Justice Neil Gorsuch arrived at his confirmation hearing with settled views about Chevron. While serving as a circuit judge, he had denounced it, in a case in which it seemed to undermine an undocumented immigrant's due process rights, as "a judge-made doctrine for the abdication of judicial duty."[2]

Justice Brett Kavanaugh, too, had opined on Chevron before his nomination. As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, which hears many regulatory cases, he had suggested that the doctrine at least be narrowed to ensure that only Congress decides major questions.

The Federal Trade Commission and other administrative agencies regulate privacy, data security and other consumer protection matters of importance to the tech industry. The court oversees those agencies' exercise of that regulatory power. Yet Judge Barrett has written little on regulation, and we can only speculate about what she thinks of Chevron deference.[3]

Of course, antitrust is the legal topic of the day in the tech world. One major antitrust case, against the chip manufacturer Qualcomm Inc., is expected to arrive at the court very shortly. Qualcomm generally sells cellphone chips only to cellphone makers that also purchase a license to use Qualcomm's wider body of cellular-technology patents.

The FTC sued Qualcomm in 2017, arguing that this no license, no chips policy violates the antitrust laws. Although the U.S. District Court for the Northern District of California sided with the FTC, a U.S. Court of Appeals for the Ninth Circuit panel ruled in August that the policy is a patent-royalty mechanism that does not harm rival chip makers. The FTC has asked the full Ninth Circuit to hear the case. Once that request is resolved, a petition for Supreme Court review is likely to follow.

Federal and state governments, meanwhile, are finishing their investigations of Google Inc., Facebook Inc., Apple Inc. and Inc. There could soon be a slew of lawsuits that seek to fundamentally change the largest tech companies' business models. Google, for example, might be accused of wrongfully promoting its own products in search results, while Amazon could face demands that it stop selling its own products in its marketplace. Litigation over whether to split some of these firms apart is not out of the question.

The Sherman Act, the main federal antitrust law, is only a few sentences long. Its sparse text has been fleshed out by an extensive body of judicial decisions. That a judge is a textualist counts for little here — and Judge Barrett has said next to nothing about antitrust law.[4] On the U.S. Court of Appeals for the Seventh Circuit, she has joined a few unanimous rulings on the somewhat arcane direct-purchaser rule, which limits standing in antitrust cases to the first buyer in a supply chain. She has yet to write an antitrust opinion of her own.

What's more, textualists can disagree even in cases about how to read a text. Many laws are not straightforward. In a case this term, Facebook v. Duguid, for instance, the court will resolve a convoluted dispute over the Telephone Consumer Protection Act's definition of an "automatic telephone dialing system."

In the lower courts, textualist judges have issued conflicting decisions. One of those decisions, Gadelhak v. AT&T Services Inc., was authored by Judge Barrett. "The wording of the [disputed] provision," she wrote, would "make a grammarian throw down her pen."

At Justice Byron White's confirmation hearing in 1962, one-third of the questions were about football.[5] How times have changed. Judge Barrett's hearing is sure to be a heated affair that has more to do with politics than the law. Like past nominees, moreover, Judge Barrett will decline to say how she would rule in hypothetical cases. But the senators will be well within their rights to cross-examine the nominee about her jurisprudence.

Chevron deference is grounded in the idea that Congress, by using broad language in a statute, may deliberately delegate interpretive discretion to an agency. What does Judge Barrett think of this theory? Does she believe it's sound under the Constitution?

The consumer-welfare standard is the centerpiece of modern antitrust doctrine. It says that companies should generally face antitrust scrutiny only when they use market power to raise prices, reduce product quality, or impede innovation. Does Judge Barrett endorse this view? What does she think of recent claims that antitrust law should consider other factors, such as how a company's market power affects small businesses or the political process?

It is true that in some cases, Judge Barrett might simply provide a sixth vote for a conservative majority that needs only five votes to prevail. But the court's conservative wing is by no means monolithic. Consider the court's ruling last year in Apple v. Pepper, an antitrust lawsuit alleging that Apple overcharges app developers.[6] The justices voted 5-4 to let the suit proceed. Justice Kavanaugh joined the four liberals and wrote the court's opinion. If Judge Barrett, too, is open to siding with the liberals in antitrust cases, the tech companies could be in for some unwelcome surprises when they appear before the court.

There are pressing questions to be asked about Judge Barrett's positions on antitrust, Chevron and more. Silicon Valley will be paying close attention to her answers.

Corbin K. Barthold is internet policy counsel at TechFreedom.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.







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