In a sign for big tech that this SCOTUS is more open to antitrust litigation, today's 5-4 opinion was written by Kavanaugh, joined by the four liberal justices
Context & Ripple Effects
The Court's posture on tech antitrust has been the open question since 2018: an early warning that an Amex-style ruling would let giants escape liability by claiming no user harm [[a:927193]], followed by a hearing where justices looked ready to let the Apple App Store suit — backed by 30 state attorneys general — proceed [[a:936016]].
Today's 5-4 opinion matters because of who wrote it: Kavanaugh, the justice most associated with the conservative bloc that antitrust experts later flagged as the main obstacle to Lina Khan's agenda [[a:967714]], joining all four liberal justices. A cross-ideological majority on an antitrust question cuts against the assumption that this Court defaults to defendants.
First-order effects
- Plaintiffs and state AGs pursuing big-tech monopolization claims get a more receptive doctrinal signal from the Court, reducing the risk that their cases die at the threshold.
- Big tech defendants lose the comfortable assumption that a conservative-leaning Court will screen out antitrust suits before they reach a merits fight.
Second-order effects
- Enforcement agencies gain confidence to bring structural cases, though the later record tempers that: the FTC's dismissed Facebook suit showed how hard charges remain to make stick once filed [[a:967908]].
- Defense strategies shift from arguing courts are hostile venues toward contesting harm theories on the merits — the same cautious, narrow framing courts applied in the US v. Google ruling [[a:889787]].
Third-order effects
- If Kavanaugh-led majorities keep crossing ideological lines, antitrust outcomes turn on the specific harm theory rather than judicial ideology, raising the premium on evidence of consumer injury over structural arguments alone.
- Persistent difficulty winning these cases regardless of Court openness keeps pressure on lawmakers to rewrite the statutes themselves rather than wait for doctrine to evolve.
The trend: Supreme Court antitrust doctrine is becoming less predictable along partisan lines, forcing both enforcers and big tech to litigate harm on the merits instead of counting ideological votes.