Alito seems cool now with the godfather of anti-tech antitrust

Justice Samuel Alito earlier this week signaled that some Supreme Court conservatives might want the First Amendment to work differently with online platforms than it does today. He may also have dropped some hints that he and his colleagues feel the same way about antitrust.

In a dissent released Tuesday, Alito wrote for himself and two of his fellow conservatives that he would let a Texas law proceed during an appeal. The law in question punishes big social media companies for their treatment of particular viewpoints in a way that most scholars think violates those corporations' free speech rights. A majority of the Court blocked the law.

But Alito also was clear to refer to "the power of dominant social media corporations" and gave a shoutout to Justice Louis Brandeis, the progressive icon of the early 20th century. That framing of the might of services like Facebook, and the approving reference to a jurist who's more or less the patron saint of the hipster antitrust movement, suggested to some that a bloc of Supreme Court conservatives may be sympathetic to the strange-bedfellows push to beat back the companies through antitrust enforcement.

"We have no doubt that champagne bottles were being popped at the law firm of Wu, Khan and Kanter," Blair Levin and Matt Perault wrote in a research note, referring to three high-profile competition-law reformers in the administration.

Lina Khan, the chair of Federal Trade Commission, is pursuing the agency's competition case against Meta, while Jonathan Kanter heads up the Justice Department's Antitrust Division, which is pursuing a lawsuit against Google. Both are expected to go through lengthy appeals — or even potentially end up before the Supreme Court — and both have fans among certain prominent Republicans who view antitrust enforcement as a way to punish Big Tech for how it handles right-wing speech.

Tech policy watchers have, in fact, often labeled the movement to use competition law against Big Tech as "Neo-Brandeisian" in reference to the justice's longtime skepticism of Big Business and his work to help build the FTC.

Brandeis, then, would seem to be an odd choice for avowed contemporary conservatives such as Alito and Justice Clarence Thomas, who joined his colleague's dissent, to cite. After all, the two had previously been viewed as reliable votes to limit the government's reach on antitrust. Yet in his dissent, Alito appealed to Brandeis' writings from way back in 1932 about states' ability to tackle “changing social and economic” times without overly hasty interference from the federal government — even though Brandeis himself was writing in dissent and wasn't forming court precedent.

Conservatives and state lawmakers of all stripes do routinely bring up a concept Brandeis formulated in the same text: that states can function as policy laboratories. Alito eschewed that line, though, and instead grabbed for the less-cited notion about the changing of society and the market. The latter does seem to share an outlook with Khan's frequent meditations on the evolution of business models as a reason she wants to push antitrust law in new directions.

In their note, Levin, a longtime tech industry analyst and former FCC staffer, and Perault, a onetime top policy official at Facebook, said all this intellectual winking and quoting seemed to add up to an interest by Alito, Thomas and others in anti-tech antitrust lawsuits, whether by the federal government or states.

"Alito’s dissent suggest to us that several Justices will be open to novel antitrust arguments in the future," they wrote.