It’s interesting that the decision went against Apple at all. Liberal jurists often favor antitrust action, and conservatives avoid it. So you’d have expected the verdict to be 5-to-4 in the other direction, along the conservative-liberal line of the Supreme Court.
But the new justice, Brett M. Kavanaugh, tipped the other way.
You could read Justice Kavanaugh’s decision as an indicator that, as people of all political stripes begin to find Big Tech troublesome, conservatives may accept that antitrust could be a useful tool in curbing its power. If that’s accurate, Big Tech should be very concerned.
Breaking up Facebook? Godspeed
In 2019 there’s little more fashionable than calling for Facebook’s dismantlement.
This past week, Senator Kamala Harris and Joseph R. Biden Jr., two of the Democrats running for president, said it should be considered, joining another, Senator Elizabeth Warren, who has called for wider Big Tech breakups. And don’t forget that Chris Hughes, a Facebook co-founder, wrote this month that he wanted its split up, too.
We could argue (at length) about the validity of the idea. But how plausible is it?
The weapon of choice behind most of these calls is antitrust law. Fine. There’s plenty of potentially anticompetitive behavior to go after. But in terms of end results, a breakup is possible, but by no means certain, from such legal action, according to antitrust experts I spoke with.
Einer Elhauge, a Harvard law professor who was chairman of the antitrust advisory committee to the Obama campaign in 2008, told me that splitting WhatsApp and Instagram from Facebook — the most popular proposal — was plausible but might depend on how deeply integrated they had become.
“It’s hard to unscramble eggs,” he said. And Facebook’s push to intertwine the platforms more closely may make such unscrambling only harder.
Harry First, a law professor at New York University who specializes in antitrust, said breaking up what then remained of Facebook would be “problematic and expensive,” making it unlikely.