What Justice Breyer’s departure could mean for tech

During his time on the Supreme Court, Justice Stephen Breyer authored and signed onto a slew of significant antitrust and regulation opinions that loom large over the cases against Facebook and Google today. His departure from the bench will mean the loss of serious antitrust expertise — a development that will sadden some traditionalists and cheer progressive antitrust activists that say change is long overdue. Breyer’s views on corporate power shifted somewhat over the years, but antitrust experts point to his decision to sign onto Justice Antonin Scalia’s 2004 opinion in Verizon v. Trinko as an example of his tendency to side with big business. A federal judge last year heavily leaned on that opinion, which defended monopolistic behavior, to dismiss the FTC’s case against Facebook. The much more imminent question is what Breyer’s retirement will mean for the Senate Judiciary Committee’s antitrust work. The selection of Breyer’s replacement is likely to engulf the committee in a frenzied nomination process over the next few weeks or months. Nevertheless, committee aides have said that right now there’s no plan to delay future markups (such as the upcoming markup of the Open App Markets Act) or further action on the Senate’s antitrust bills.