Antitrust as a Barometer of Big Government
Today, however, the Court s antitrust jurisprudence is sounder than its constitutional law jurisprudence. In Verizon Communications v. Trinko, Justice Antonin Scalia wrote a hymn to the virtues of permitting businesses to seek a monopoly, because that pursuit encouraged innovation and skill to the benefit of consumers. Scalia implied that these animal spirits are the lifeblood of the economy. And this opinion commanded a unanimous court. Justices Stephen Breyer and Ruth Bader Ginsburg subscribe to the pro-market model of antitrust more than the justices they replaced.
Outside the Court today, however, ominous signs are gathering that the pro-government model is making a comeback. One of Elizabeth Warren s leading campaign ideas is to break up the big tech companies, requiring them to serve only as platforms for others products. For instance, Google could not promote its own maps or Amazon could not sell its own products. Warren is returning to the view that monopolies should be condemned without requiring proof of bad conduct.
I have the greatest respect for John McGinnis and count him a friend, but I have some doubts about this analysis of antitrust law. Not about his history– I would only add some color this history, such as illustrations of the arrogance of Brandeis and the idiocy of the Warren Court. What worries me is how much we can take this past to inform us about where we are now. Is Google the next Microsoft, or are they uniquely entrenched and getting more so all the time? It certainly looks like the latter. Is the existence of the Chinese Communist Party a reason to fear Google–I think so– they’re not exactly patriots, unless you count China as your country, or Space Village 3000 or some such imaginary place. Maybe a reason not to break the Googles up is we need the strongest tech industry we can manage now given China. And is technology really accelerating? Or are we stuck in a rut, as Peter Thiel argues, persuasively, at least when you’re listening to him. He also, however, seems to agree that building monopolies is what it’s all about and presumably would be against a Big Tech breakup, at least his Big Tech. What would John say to repealing Section 230 of the Decency act I wonder. That alone would solve some of the problems of Big Tech monopolies. At least that might stop them from being the arbiters of speech in our razmataz digital age.