Thomas’s suggestion appears to have had its genesis in Richard Epstein’s comments in this FedSoc webinar from February…
This continues the left-right convergence on limiting Big Tech’s power. But this introduces a new difference among the many distinctions already dividing the two sides’ approaches...
Lefties want to bring antitrust law back to its competition-oriented, small-d democratic-driven roots.

Righties like Thomas and Epstein oppose that model and prefer the Bork-style free-market focus on consumer prices that generally serves to protect big firms from break-up.
Righties like Thomas and Epstein also generally prefer juristocratic interventions to protect the market from democracy. It's what distinguished them from, say, Scalia for much of his career.
So what are righties like Thomas and Epstein to do to curb Big Tech now that they fear it is silencing conservative voices? They won't use antitrust. They don't trust democracy. No, they'll repurpose a legal doctrine that (only) judges can apply (only) to these select firms.
So from one angle, the goals of left and right remain the same: curb the power of the tech giants. But from nearly every other angle, the means and ends are different.
Antitrust v. monopoly.
Public utility v. private market.
Democracy v. juristocracy.

Both sides of the "v" want to curb BigTech power, but how to do so, and what the end result will do to those firms, big firms generally, and American law is very, very different.
It's actually quite amazing how even on BigTech stuff, Epstein and Thomas managed to conjure up a legal theory that serves their immediate political preferences while leaving their enduring ideological priors entirely intact.
Adding this very good and very smart thread here

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6 Apr
Another anticipatory bit of trivia: Breyer’s confirmation kicked off a record 11 years of an unchanged Court.

Should Breyer retire this year, his successor’s confirmation stands a good chance start a new record-breaking run.
Thomas, turning 73 this summer, would become the oldest justice. Come fall he’ll hit his 30-year SCOTUS anniversary. If we’re to take early reports from his tenure seriously and he stays healthy, he’ll stick around for another 13 years.
(I, of course, remain shocked he didn’t learn the lessons of Scalia and Ginsburg and let McConnell ram through his replacement immediately after Barrett’s confirmation)
Read 4 tweets
6 Apr
Now that this thing is actually live I’ll say it again: doesn’t matter what your ideological priors are - if you don’t have Taney beating McReynolds/Field in the finals, you’re doing it all wrong
Me? I’ll have Taney over McReynolds because Field was at least on the right side of Slaughterhouse even though he was doing it for the wrong reasons, while McReynolds, however odious his person and wrong his views, didn’t, you know, write Dred Scott.
Another reason Field must fall to McReynolds:
Read 5 tweets
3 Apr
Owning the libs by...legislatively overturning Flood v. Kuhn, which libs would...celebrate for strengthening labor rights and vindicating Curt Flood, who was the Kaepernick of his time. Well done.
Douglas, Brennan, and Marshall - the Court’s three most liberal members - dissented from Flood v. Kuhn. Repping flood was Arthur Goldberg, who had been one of the Warren Court’s big liberals.
Then there was this story from The Brethren: ImageImageImageImage
Read 7 tweets
8 Mar
Every once in a SCOTUS justice picks one of their side's ideological issues over another, sometimes--but not always--to the benefit of the opposite side's preferred result.

Here's what the six conservative justices put at the top of their lists:
Roberts, with rare exception, puts his standing hawkishness over his substantive agenda. Proof: his first-ever solo dissent today was against an Evangelical Christian college student arguing a free speech violation; his vote in the Prop 8 case to the benefit of SSM in CA.
(Top of my head, Roberts rare exception assuming standing when he otherwise may not have: the Fisher affirmative action cases)
Read 12 tweets
21 Feb
The district court judge at the center of this story is 54. That alone means she’s not going to be a SCOTUS nominee, no matter what else she has going for her.
Influential members of Congress can pitch their preferred names all day long but sitting right by POTUS is a VPOTUS from a state where its highest court houses a 44yo black female justice who cut her teeth in the US Solicitor General’s office after clerking for Justice Stevens
And while Breyer could pull a Kennedy and put his thumb on the scales for his own former clerk, I think KBJ is more likely to get elevated to Garland or Tatel’s seat on the DC Cir than skip straight to SCOTUS
Read 7 tweets

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