Conservative courts could rescue tech

The big picture: 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.

While Big Tech issues don’t necessarily map to traditional political lines, free market advocates have already made the case that Biden’s sweeping competition executive order could bring unnecessary government intervention and inadvertently undermine competition rather than improve it.

“For the past 40 years the courts have required agencies to offer evidence that their antitrust actions will make consumers better off,” said Neil Chilson, former FTC chief technologist and senior research fellow for technology and innovation at the Charles Koch Institute.

“If the FTC or DOJ bring politicized cases or cases focused on protecting competitors, where they cannot show that consumers will be better off, courts will be a major obstacle,” he said.