Conservative courts are an obstacle to Biden's antitrust agenda

The Biden administration's push to increase competition in the technology industry could be on a collision course with a formidable obstacle: the courts. As president, Donald Trump appointed 226 federal judges, leaving a huge mark on the judicial system, particularly appellate courts. Conservative judges on benches across the country tend to take a narrower view of antitrust law focused on proving "consumer harm" to justify antitrust enforcement. Proponents of taking antitrust measures against Big Tech were dealt a huge blow last month when a federal district judge dismissed the Federal Trade Commission's December complaint against Facebook, which asked the court to unwind Facebook's acquisitions of Instagram and Whatsapp, among other things. As the FTC's experience has shown, strong action targeting Big Tech will be hard to sustain without legislation according to Andrew Schwartzman, senior counselor for the Benton Institute for Broadband & Society. "Even before the influx of new Trump judges and Justices, the courts have been getting tougher and tougher on economic regulation issues," he said. Despite the headwinds, Schwartzman added that agencies still have a chance of winning in appellate courts by building strong factual records and staying within the lines of legal precedent.