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Noah Feldman

Kavanaugh Takes a Shot at Apple, and Big Tech Should Take Note

The Supreme Court is more open to antitrust litigation if the newest justice is willing to join liberals on this issue.

That’ll cost you $0.99.

That’ll cost you $0.99.

Photographer: Balint Porneczi/Bloomberg

In a 5-4 decision Monday, the U.S. Supreme Court allowed iPhone users to sue Apple Inc. for being a monopolist when it comes to apps. The fascinating fact about the holding isn’t its legal logic, which was sensible enough, although by no means obvious. Rather, it’s worth noticing that the opinion was written by Justice Brett Kavanaugh — and joined by the court’s four liberals. Four other conservative justices dissented, joining an opinion by Justice Neil Gorsuch.

Before you get excited, this isn’t some magical sign that the conservative Kavanaugh is a closet liberal. But it nevertheless reveals something important about the possible future of antitrust litigation against big technology companies at the Supreme Court.