What Justice Kennedy Meant for Tech

With Supreme Court Justice Anthony Kennedy announcing he will retire come July 31, the high court could be headed for a major shift as the president will look to solidify the body’s conservative majority. Here’s a look at how some of his opinions have shaped the technology and telecommunications spheres — and what his absence could mean going forward. A perennial swing vote in his more than 20 years on the high court, Justice Kennedy served as the deciding vote on numerous high-profile legal battles. One noteworthy ruling came in 1997, when he authored the majority opinion in a 5-4 decision for Turner Broadcasting v. the FCC, where the court held that Congress "has an independent interest in preserving a multiplicity of broadcasters." The ruling sharpened the law’s reading (and the boundaries) of broadcasters’ and cable companies’ speech rights. It affirmed the constitutionality of FCC-enforced “must-carry” rules requiring cable companies to pick up local broadcast channels. Less than a week before announcing his retirement, Justice Kennedy authored another opinion in a 5-4 ruling in South Dakota v. Wayfair. Writing for the court, he said states can collect sales tax from online retailers even if they don’t operate a physical location in the state — a ruling that could reverberate in e-commerce for years to come.

President Donald Trump looks poised to nominate another conservative voice to the bench in the mold of Justice Neil Gorsuch. Whoever fills the seat will undoubtedly be tasked with adjudicating issues at the intersection of tech and policy, as lawmakers and Silicon Valley continue to grapple with matters like data privacy, data collection and market consolidation, inevitably begetting court battles. One case to watch, already on the Supreme Court’s 2018-19 docket, is Apple v. Pepper, in which the court could weigh whether consumers can bring an antitrust suit against a party that delivers them goods — like a mobile app store — even when another party is setting the price.